
Class _y\db_L 
Book * [VI \ \p 



AN 



HISTORICAL VIEW 



GOVERNMENT OF MARYLAND; 



FROM ITS 



COLONIZATION TO THE PRESENT DAY. 



BY JOHN V. L. McMAHON. 



VOL. I. 



Baltimore: 

rOSLIIHU BT f. LUCA,, JR. OUUmra & »0 N S, AND WILLIAM & JOSEPH NIAL 

Lucoj &f Denver, yrinl. 

L831. 



DISTRICT OP MARTLAND, SS. 

Be it remembered, That on this twelfth day of February, in the fifty-fifth year of the 
Independence of the United States of America, John V. L. McMahon, of the said district, 
hath deposited in this office, the title of a book, the right whereof he claims as author, in 
the words following, to wit: 

"An Historical View of the Government of Maryland, from its Colonization to the Present 
Day.— By John V. L. McMahon.— Vol. I." 

In conformity to an Act of the Congress of the United States, entitled, "An Act for the 
encouragement of Learning, by securing the copies of Maps, Charts, and Books, to the 
authors and proprietors of such copies, during the times therein mentioned," and also to 
the Act, entitled, "An Act supplementary to the Act. entitled, An Act for the encourage- 
ment of Learning, by securing the copies of Maps, Charts, and Books, to the authors and 
proprietors of such copies during the times therein mentioned, and extending the benefits 
thereof to the arts of Designing, Engraving, and Etching historical and other Prints." 

PHILIP MOORE, 
Clerk of tht District of Mary land. 









. 



PREFACE. 



Prefaces were formerly called "apologies to the rea- 
der:" and although they have changed their name, they 
have not lost their original nature. They assume, for the 
reader, that he is ignorant of the subjects upon which the 
writer professes to instruct him ; and for the writer, that 
he has enjoyed means of information denied to the reader. 
The writer of this work has no apologies to make, on its 
behalf, for any such assumptions. If it presupposes, that 
the people of Maryland require information upon its topics, 
it proceeds only upon what has been universally admitted 
with regret. If it implies that its writer has any peculiar 
knowledge to impart, he can at least say, that he has 
drawn it, principally, from records, and other memorials, 
of which the moth and rust, those decayers of all earthly 
things, have been the sole proprietors for more than half a 
century. If it claims for him competency to the task he 
has undertaken, it only arrogates the liberty of attempting, 
what all have declined, and many have pronounced im- 
practicable. 

Like most other undertakings, the design of this work, 
as now accomplished, extends far beyond the original pur- 
poses of its author. At a very early period of bis profes- 
sional life, In- began the task of collecting and arranging the 
materials for an Elementary Treatise upon the Laws and 
Institutions of the State. Winn this design had nearly 
progressed to accomplishment, our Legislature was pleased 

to direct a general revision of the laws, which, under the 



iv PREFACE. 

extensive powers confided to the revisors, might have re- 
sulted in the establishment of a new code. With such a 
result in prospect, the further prosecution of his original 
purpose seemed useless; but as there was reason to believe 
that the revision would effect no material change in the 
institutions, through which the public authorities were 
exercised, it still left open to his views the wide field of 
public relations under the State Government. The design 
was, therefore, bounded to the examination of these, and to 
the investigation of the institutions of the Colony, so far 
as it might be necessary to illustrate the existing State 
establishments. In this form, it received the sanction and 
patronage of the Legislature, in the winter of 1826 — 27; 
but it again became the sacrifice of unexpected occurrences. 
Thrown suddenly into the midst of the engrossing cares 
and labors of public life, at the very moment when he was 
about to enter upon its execution, the writer yielded it to 
the necessities of the moment, as one would his first-born. 
The hour of retirement from public employments at length 
arrived; and the field of his contemplated exertions was 
still unoccupied. Yet with the first fervor of the enterprise, 
had passed away much of the energy so necessary for its 
accomplishment : and it might still have slept, but for the 
promptings of a soft and gentle monitor. It was easily 
revived ; for authors have their first loves, as well as lovers, 
to which, with all that time and distance can effect, the 
" untravclled heart" will still return, and cling the closer 
for the separation of the past. 

Of a design thus formed and quickened into life, the 
writer now presents the first fruits. If, to the reader, they 
bring neither interest nor information, where both were 
promised, let him remember, that to the writer they are 
associated with the cherished projects of his youth; and if 
he has been deluded by the hope of affording pleasure or 
instruction to others, where he has found both, he is only 
the victim of a common error. If he could but hope to 
effect one purpose, he would ask no greater boon. The 



PREFACE. 



history of his native State abounds with recollections that 
would adorn any people: her sons have been conspicuous 
for every talent and virtue that lends dignity to human 
nature ; and her institutions dispense freedom, security, and 
happiness to the citizen. Yet where are her memorials of 
the past, to teach whence sprang the enjoyments of the 
present; and to give value and permanence to her liberties, 
by the knowledge of the perils through which they have^.. 
gone? All have passed, or are passing into oblivion; and 
after the lapse of two centuries, we are yet a new people, 
with scarcely a single monument or cherished remembrance 
of the past, around which State pride may cling. The 
originals of many of our Institutions, are lost to public 
view: the spirit, nay, the very form of others, are scarcely 
understood; and our Constitution and laws have almost 
become a mystery, to be solved only by the oracular respon- 
ses of the favored few, who have had the means and leisure 
to explore them. Intent upon the present, we seem to 
have forgotten that the great secret of national advancement 
consists in the cultivation of a proper national pride ; and 
that the elements of this pride exist in the associations of a 
nation's history, and in the devotion to her institutions which 
springs from a knowledge of their nature and ends. By - 
these the citizen is identified with his country, and sub- 
jected to the influence of feelings and impulses, which, in 
times past, have made men heroes and patriots, and con- 
ducted whole nations to freedom. The welfare and advance- 
ment of the State, are thus made objects of individual 
interest; and in the engrossing desire to advance its cha- 
racter, all petty jealousies and rivalries are merged. It 
such is the natural result of a proper Slate pride, where is 
the State whom it behooves more sedulously to cultivate 
it, than that in which we dwell? If the writers humble 
efforts can contribute in any degree to promote it, by ren- 
dering the people.,!" Maryland more familiar with its his- 
tory and institutions, or by tempting others el' more ability 
to improve the beginning he has made, his highest aims 
are reached. 



vi PREFACE. 

It is unnecessary to detail the plan of this work. It is 
its own interpreter : and to explain its purposes in advance, 
is like detaining the traveller upon the threshold, to de- 
scribe to him the mansion he is about to enter. Prefatory 
sketches are, commonly, but so many glimpses of the prom- 
ised land, to tempt the reader to the travel : but there is a 
better lure, in the impulses of unsatisfied curiosity. There 
is at least a greater probability in the latter case, that the 
reader will get beyond the preface. In this volume, no 
attempt has been made to investigate the History and condi- 
tion of the Indians of Maryland: but the writer is not with- 
out hopes, that he will be enabled to attach to the second 
volume a memoir of some interest upon this subject. In 
the Appendix to the second volume will be found a list of 
the officers who have filled the higher provincial and State 
offices, extending from the colonization to the present day, 
and designating the times of their appointment and removal: 
and a series of statistical tables, relative to the population, 
commerce, and manufactures of the State, and of its princi- 
pal towns. All else of the plan, that is not developed in 
this volume, will appear in proper season. 

Whatever may be thought of the plan, or of the manner 
of its execution, the reader, in passing upon them, will call 
to mind the intrinsic difficulties of the attempt. To sketch 
the history and describe the institutions of a people, is no 
light undertaking, even when the materials are abundant, 
and are already collected for reference. Yet when it is ac- 
complished with such aids, it is an easy and delightful task, in 
contrast with the labors of the present effort. In most of 
his researches, the writer has had no pioneer : and he has 
been compelled to rely principally, for the sources of his 
information, upon unpublished and imperfect records, the 
very perusal of which, if inflicted as a punishment, would 
be intolerable. Fortunately for him, the labor was allevia- 
ted by the kind attentions of the State Officers, having the 
custody of the public records, who were ever ready to 



PREFACE. vii 

assist him in his researches and share his toils. Deeply 
sensible of these attentions, he cannot suffer the occasion to 
pass without thus publicly tendering his acknowledgments 
for them, to Mr. Ridgely, the State Librarian, Mr. Brewer, 
the Register of the Land Office, Mr. Pcarce, the late Clerk of 
the House of Delegates, and Mr. Murray, the late Clerk of the 
Council. To his friend, Mr. Jonas Green, of Annapolis, he is 
indebted, as the reader will perceive, for some of the most 
valuable information which this work embodies; informa- 
tion furnished with that peculiar kindness of manner, which 
strives to break the weight of obligation, by seeming rather 
to be the receiver than the giver of favors. To Mr. James 
Carroll, and Mr. Fielding Lucas, Jun., of Baltimore, he is 
indebted for several rare works, which he had occasion to 
consult in the course of his researches : and Mr. Carroll 
also kindly submitted, for his perusal, some very interest- 
ing memoranda, of his own collection, in reference to the 
Provincial Government. Mr. Horatio Ridout of Anne 
Arundel, as soon as he was apprised of the writer's inten- 
tions, transmitted to him a record of all the correspondence of 
Governor Sharpe, during his long administration of this 
Province. This record was made by the father of Mr. Ri- 
dout, the acting Secretary of Governor Sharpe, and is full 
of interesting details, relative to the internal polity of 
this Province, and the operations of the colonies gene- 
rally, during the French war, which was closed by 
the treaty of Paris. Unfortunately it was not received, 
nor was the writer aware of its character, before that part 
of this work which particularly relates to Gov. Sharpe's 
administration, had gone to the press; but he still hopes 
to avail himself of some of its most interesting portions, 
in the succeeding volume. None but those who have 
engaged in such undertakings as the present, can know 
how grateful BUch attentions are; and none but the ungrate- 
ful can fail to remember, and acknowledge them. 

Attached to a profession upon which he depends for 
support, the writer has been compelled to make the pur- 



riii PREFACE. 

suits of this work, in reference to his general employments, 
what Madame De Stael has said love is in the history of 
man, a mere episode. But, to accomplish this in the few 
months which have elapsed since it was commenced for 
publication, he has found it necessary to devote to it many 
of the hours due to sleep and exercise, and often to bring 
to the task a languid and exhausted frame. Yet even with 
all the inequalities and imperfections which such a manner 
of writing is calculated to impart, he was unwilling to 
abandon a design which could not otherwise have been 
effected. 

Alike its author, this work has had no patron to usher it 
into public view, and it must make friends as it goes. The 
generous mind will appreciate its difficulties, and make due 
allowance for its imperfections. To those who look upon 
the approbation of others' efforts as the office of inferior 
minds, and the art of finding faults as the evidence of their 
own superiority, the author has but one admonition to give. 
If respected, it will relieve him from that class of critics, 
who, like certain insects, annoy more by their buzz than their 
sting. It is couched in the language of an old Maryland 
poet; 

Let critics, that may discommend it, 

mend it. 

Baltimore, February 12th, 1831. 



CONTEXTS. 



INTRODUCTION. 

CHAPTER I. 

Of the grant and territorial limits of the Slate of Maryland. 

Original extent of the Province, page 1 — The antecedent grants to the Lon- 
don and Plymouth Companies, 2 — New and exclusive grant to the Plymouth 
Company, 3 — The settlements within^the Plymouth grant, anterior to the 
Charter of Maryland, 4 — The several Charters to the London Company, 
and their resumption by the crown, 5 — Clayborne's settlements, C — The 
grant of Maryland, and how obtained, 8 — The various Sources of the 
Territoriaj Controversies in which the Proprietaries of Maryland were 
involved, 10 — Objections to the Charter on the part of the colonists of 
Virginia, ib. — Clayborne's flight and attainder, 14 — His petition to the 
King in council, and the order in council thereon, 15 — Clayborne and In- 
gle's rebellion, 17 — Proceedings of Clayborne and others, as Cromwell's 
commissioners, ib. — Controversies with Virginia, growing out of the settle- 
ments on the Southern part of the Eastern Shore, 18 — Final adjustment 
of Watkin's Point, and the line thence to the ocean, 20 — Swedish and 
Dutch Settlements along the Delaware, 21 — Proprietary's efforts to 
remove them from his territory, 23 — Reduction of them by the Duke 
of York, 25 — Grant of Pennsylvania, 26 — Penn's grant from the Duke 
of York, and his negotiations with Baltimore, 27 — Objections urged 
against the Charter of Maryland, 30 — Baltimore's efforts to make Settle- 
ments on the disputed Territory, 31 — Adjudication of the Board of Trade 
and Plantations, ib. — State of the Controversy from the order of 1685 
until 1718, 33 — State of the Controversy from 1718, until the agreement 
of May, 1732, 36 — Agreement of May 10th, 1732, 38 — Baltimore's appli- 
cation to the King in council, and result of it, 39 — State of the Bounda- 
ries from the agreement of 1732, until the decree thereon in 1750, 40 

Decree upon the Agreement of 1732, 41 — Proceedings of the Commission- 
ers under this Decree, 42 — Death of Charles Lord Baltimore, and the efforts 
oPlhc new Proprietary to resist the Decree of 1750, 43 — The final agreement 
of 4th July, 1760,44 — Savings under it, 45 — Proceedings of Commissioners 
under it, and their final report, ib. — New sources of controversy, 49 — Grant 
of the Northern Neck, 50 — The extension of the claim under these grants to 
the North Branch, 51 — Course pursued by the Proprietary of Maryland, ib. 
— The previous adjustment of the Boundaries between tho government of 
2 



X CONTENTS. 

Virginia and Lord Fairfax, 53 — Causes which suspended the controversy be- 
tween the two Proprietaries until the Revolution, 55 — Effect of the Revo- 
lution upon it, 58 — Virginia cedes to Maryland all the Territory given by 
her charter, subject to certain Reservations, 59 — These Reservations se- 
cured to her by compact with Maryland in 1785, 60 — General view of 
this compact of 1785, 61 — Efforts for a settlement of the Boundary from 
the period of this compact until the passage of the act of 1818, 63 — Ma- 
ryland Act of 1818, and the issue of the negotiations under it, 67 — Pre- 
sent policy of Maryland, 68 — Extent of her present Rights, 69 — Remedies 
open to her, 71. 

CHAPTER II. 

Of the Civil Divisions of the State of Maryland. 

Of the Shores, 74— Of the Counties, 79— Of the Districts, 97. 

CHAPTER HI. 

Of the Sources of Maryland Law. 

Of the Introduction and present Operation of the Common Law, 106 — 
Of the Introduction and Operation of the English Statutes under the Pro- 
prietary government, 116. 

HISTORICAL VIEW. 
CHAPTER I. 

Of the Proprietary Government of Maryland. 

Connexion of the Colonial history of Maryland with its present Government 
and condition, 133 — Utility of the recollections which belong to the history 
of her Proprietary government, 134 — General effect of a Nation's history 
upon its character, 135 — Preservation of its history a part of its national 
duties, 136 — Peculiar utility of the Colonial history of these United States, 
in illustrating the origin and determining the proper character of our Fede- 
ral Government, ib — Objects of this chapter, 138 — The three general 
forms of Colonial government established within the English colonies of 
North America, 139 — Peculiar advantages of the most favorable forms 
of Proprietary government, 140 — The Proprietary government of Mary- 
land of the most favorable form, 141 — Advantages resulting from the grant 
of Maryland to a single proprietary, 142 — These advantages illustrated in 
the histories of Maryland and Pennsylvania, 143 — General fate of the Pro- 
prietary governments of a different description, ib. — Extent and distribu- 
tion of the Legislative power under the charter of Maryland, 144 — Control 
of the Proprietary over the form and existence of the Assemblies, and how 
modified, 146 — General results of the Legislative power, 148 — Nature of 
the Proprietary power to pass Ordinances, 149 — Extent of its actual exer- 
cise, 150 — The Executive powers incident to the Proprietary government, 
151 — Origin, nature and extent of the Palatinate jurisdiction attached to 
it, 152— Policy of the English government in its extensive grants of juris- 



■diction to the Colonial governments, 153 — The jurisdiction conferred upon 
the Proprietary of Maryland peculiarly extensive, 154 — The mere civil 
powers : and firstly, those relating to the creation of the offices, and the 
appointment of the Officers of the Province, 155 — Tendencies of this Pro- 
prietary power, and how restrained and corrected, 157 — 2dly, The powers 
of erecting towns and cities, and conferring dignities and titles of honor, 
158— 3dly, The power to pardon offences, 159 — Military powers of the Pro- 
prietary under the charter, t&. — Restrictions imposed upon these military 
powers by the legislation of the Province, 160 — General course of the 
English government as to the commerce of the American colonies, 161 — 
The early policy of that government illustrated in the commercial privi- 
leges granted by the charter of Maryland, 162 — Peculiar nature and effi- 
cacy of the charter exemption of its commerce from the taxation of the 
English government, ] 63 — The system of restrictions upon the commerce 
of the colonies introduced and established during the reign of Charles I., 164 
— First reception and final establishment of this restrictive system within 
the Colony of Maryland, 165— Ecclesiastical powers of the Proprietary, 166 
— Personal rights and revenues of the Proprietary, 167 — Nature and tenure 
of the Proprietary's interest in the soil of the province, ib. — His power to 
make sub-grants of the lands of the Province, and the tenure of those sub- 
grants, 168 — The manner in which it was exercised, ib — Sources of the 
Proprietary's land revenue, 169 — Quit Rents, ib. — Caution money, 172 — 
Alienation fines, 174 — Proprietary revenue arising from other sources, 175 
— Port, or Tonnage Duty, 176— The Tobacco Duty, 178 — The revenue 
from common law fines and forfeitures, and amerciaments, 181 — Personal 
rights incident to the office and dignity of the Proprietary, 182. 

CHAPTER II. 

The History of the Government of Maryland from the Colonization 
until the Protestant Revolution. 

Eras in the Colonial history of Maryland, 185— The Colonial history of Ma- 
ryland, distinguished more by results than by incidents, lsG — Causes which 
diminish the interest of colonial history generally, ib. — Deficiency in the 
materials necessary for the early history of colonies, 187 — The Colonial 
administration of Maryland not calculated to evolve striking incident*, 188 
— Limited designs of this Historical View, and peculiar difficulties in its 
accomplishment, 189 — The desire for civil and religious liberty, the pri- 
mary cause of the settlement of the English colonics in North America, 
190 — The circumstances which gave peculiar energy to Ibis desire, 191 — 
Operation of these in producing the colonization of Maryland, 192 — Esta- 
blishment of the first colony und.r the charter of Maryland, 194—^ 
cious policy of the Proprietary in t! ment o( the colony, 196 — 

Dissatisfaction of the Vir^iniu settlers with tin- granl of Maryland, :h.>1 it* 
permanent influence upon the relations between the two colonies, 199— This 
dissatisfaction increased am! the tranquillity • ince first Inter* 



... > . . 

jcii CONTEtfH* 

rupted by the intrigues of Clayborne, 200 — The Indian war of 1642, 201 — 
Clayborne and Ingle^ rebellion, in 1644, ib. — The course of the govern- 
ment and colony of Maryland, with reference to the collisions of the 
mother country, 202 — Departure from it in one instance, 203 — Proceedings 
of the Parliament and Council of State for the reduction of the colonies 
adhering to the royal cause, 204 — Submission of the Proprietary govern" 
ment to the Parliament commissioners, 205-^yt T surpation of the government 
by these commissioners, in the name and under the authority of the Pro- 
tector, 206 — Fruitless efforts of Governor Stone to regain the government, 
207 — Revival of the Virginia claims in opposition to the restitution of the 
Proprietary, ib. — Course of the Protector with reference to these conflict- 
ing claims to the Province, 209 — Condition of the Province favorable to 
the Proprietary claim, ib — Rise and character of Josias Fendall, 210 — 
Fendall commissioned as governor by the Proprietary, and the Province 
fully surrendered to him in March, 1658, 211 — His intrigues for the over- 
throw of the Proprietary dominion, 212 — Proprietary power re-established 
by Gov. Philip Calvert, in Nov. 1660, 213 — Administration of the govern- 
ment from 1660 to 1676, 214 — Accession of Charles Calvert as Proprieta- 
ry, 215 — He departs for England; in 1676, triumphs over the objections to 
his government, and returns to Maryland in 1680, ib. — The government 
administered from this period until May, 1684, by the Proprietary in per- 
son, and character of his Administration, 217 — Danger to his government 
from the inclinations of the crown, ib. — The jealousies of the crown en- 
hanced by the opposition to the restrictions imposed upon the trade of the 
colony, 2 IS — Return of the Proprietary to England in May, 1684, and the 
state of his rights there, 219 — The charter of Maryland rescued from de- 
struction by the Protestant Revolution, 220 — Overthrow of the Proprietary 
government in 1689, ib. — Character of Cecillus and Charles Calvert, and 
the results of their Administrations, ib. — Population of the colony during 
this era, 222 — Occupations and trade of the colony, 224 — State of their 
currency, 225 — Public Press in the Province during this era, 226 — Reli- 
gious liberty in the Province during this era, ib. 

CHAPTER III. 

History of the Royal Government of Mary ah d. 
The Protestant Revolution in Maryland, 229 — Barrenness of our Records, in 
all that would illustrate the causes and progress of this revolution, 230 — 
Condition of the Protestant inhabitants before that Revolution, 232 — The 
Proprietary relations with the crown, at the period of its occurrence, 233 
— Assembly transactions immediately before its occurrence, 234 — Timid 
policy of the deputy governors, ib. — Results of that policy, 236 — Origin 
and triumph of the Protestant association, 237 — Character and motives of 
John Coode, its leader, 238 — Proceedings of the Associators after the over- 
throw of the Proprietary government, 239 — Royal government established 
in Maryland, 241 — First Assembly under the new government, 242 — The 
church of England established by lav, 243 — Its establishment a novelty in 



CONTENTS. x i,i 

the history of the Province, ib. — Consequences of its establishment, 244 — 
Condition of the Protestant Dissenters under the new government, 245 — Pro- 
prietary rights and interests not affected by the Revolution, 246 — These 
private and personal rights sustained by the crown, 247 — Ultimate dispo- 
sition of these rights, 248 — Adjustment and condition of the Proprietary's 
Land Rights during this era, 249 — City of St. Mary's, 250 — Influence of 
the Protestant revolution upon its rank and privileges, 252 — Removal of 
the government from St. Mary's, ib — Place selected in its stead as the seat 
of government, 253 — Growth of Annapolis, and downfall of the city of St. 
Mary's, 254 — Annapolis erected into a city, Provisions of its charter, 
255 — Assembly Proceedings as to its charter, 25G — Ultimate rank and 
condition of Annapolis under the Proprietary government, 257 — Po- 
litical liberties of the colony not affected by the change of govern- 
ment, 259 — Administrations of Copley and Andros, 2G0 — Administra- 
tion of Governor Nicholson, ib. — Its peculiar traits, 262 — External re- 
lations of the colony during his administration, 263 — Public Post establish- 
ed, 266 — Administrations of Governors Blackiston, Seymour, and Hart, 
267 — Attempts during these Administrations, to destroy the charter gov- 
ernments, ib. — Opposition of the colony to the scheme of a general union 
of the colonies in 1701, 270 — New attack upon the charters in 1715, 271 — 
Sources of information as to the statistics of the colony during this era, 
272 — Its trade and pursuits generally, 274. 

CHAPTER IV. 

History of the Government of Maryland, from the restoration to 
the treaty of Paris. 

Suspension of the Proprietary government not attributable to mal-adminis- 
tration, 277 — True cause of its suspension, 278 — Restoration of the govern- 
ment, ib. — Its effects upon the colony, 279 — Exclusive character given to 
it by new test oaths, 280 — General results of the Proprietary administra- 
tion during this era, 281 — Controversy about the extension of the English 
statutes, 283 — Disputes about the Proprietary revenue, ib. — Indian treaty 
of Lancaster, 286 — State of the Colony during the interval between that 
treaty and the French war, 283 — Death of the Proprietary and character 
of his administration, 289 — Course of Maryland during the French war of 
1 ' 54, 290 — Origin and objects of this war, 292 — Policy of the Assembly at 
the opening of this war, 294 — Transactions of the province in connexion with 
the proceedings of the Albany Convention, ib. — Assembly proceedings in 
July, 1754, 296 — Inactivity of the colony during the campaigns of 1754 
and 1755, 297 — Controversy about the duty on ordinary licenses, 298 — 
Character of that relative to the duty on convicts, Hi. — Propriety of the 
course of the Lower House as to these controversies, 302 — Unprotected 
condition of the frontiers, at the close of the campaign of 1755, 303 — 
Efforts of the Assembly to put them in a state of defence, 305 — New dis 
putes about a system of revenue, between the two houses of Assembly, 30ft \ 



xit CONTENTS. 

— Characteristic features of the system sustained by the Lower House, 
308 — Opinion of Lord Camden upon this system, 309 — Effect of it upon 
the Lower House, 311 — Governors, 313 — Population, ib — Commerce of 
the colony, 315 — Its Manufactures, 316. 

CHAPTER V. 

History of Maryland from the passage to the repeal of the Stamp 

Act. 

Results of the treaty of Paris, 319 — The preservation of the French power 
in Canada favorable to the liberties of the colonies, 321 — Degree of colo- 
nial dependance before the Protestant revolution, ib. — The further exten- 
sion of it suspended until the Revolution, by the condition of the mother 
country, 322 — Circumstances in the after-condition of the colonies, con- 
spiring to protect colonial liberties, 323 — Entire supremacy, the constant 
aim of the English government, 325 — Effect of the late war upon this de- 
sign, ib. — Sentiments of the people of Maryland as to the right of taxa- 
tion, 326 — Pretexts for the^Stamp tax, 328 — Policy in the manner of its 
imposition, 330 — Preliminary measures of the English 'ministry, ib. — In- 
fluence of these measures upon the colonies, 331 — Relative merits of the 
colonies in originating the resistance to the Stamp Act, 332 — The course 
of Maryland, 333 — Causes which prevented the early action of her As- 
sembly, 334 — Early and decisive indications of the sentiments of her peo- 
ple, 335 — Hood, stamp-distributor for Maryland, ,337 — His reception in the 
colony, 338 — His expulsion and ultimate fate, 340 — First Assembly after 
the Stamp Act, 342 — Its proceedings upon the proposition for a general 
congress, 344 — Its resolves against the Stamp Act, ib — Disposition of the 
Stamp Paper, 347 — Character of the Proceedings of this Assembly, 348 — 
Political Essays of that period, ib. — Essay of Daniel Dulany of Maryland, 
against the Stamp Act, 349 — Its outlines, 350- — The remedy against colo- 
nial oppression indicated by it, 351 — Proceedings of the Continental Con 
gress, 355 — Policy of the English ministry at this period, 357 — Actual op 
eration of the Stamp Act in Maryland, 359 — Origin and results of the As- 
sociation of the Sons of Liberty, 360 — Inefficacy of the Stamp Act in the 
colonies generally, 362 — Opposition in England, ib. — Absolute repeal of the 
Act, 363. 

CHAPTER VI. 

History from the Stamp Act to the Revolution. 

Character and results of the repeal of the Stamp Act, 365 — Influence of the 
Stamp Act controversy upon the colonies, 366 — Revival of the design to 
tax the colonies, 367 — Nature and policy of the measure selected for its 
accomplishment, 368 — Duty Act of 1767, and the acts accompanying it, 
369 — Opposition of the colonics, and proceedings of Massachusetts, ib. — 
Attempts to enlist the Assembly of Maryland against the designs of the 
Massachusetts Circular, 370 — Message of the Lower House elicited by 



CONTENTS. xv 

these attempts, 371— Proceedings of the Lower House in opposition to the 
duty act, 373 — Character of these proceedings, i&.— Non-importation As- 
sociation, 373 — General revival of it, 376 — Us adoption in Maryland, 377 
—Its results, 373 — General secession from in 1771), 379 — Proclamation 
and vestry act question, 380 — Circumstances which gave rise to the Pro- 
clamation, 3S1 — The Proclamation: its object and expedience, 383— Par- 
ties formed upon it, 335 — Course of the Lawyers of Maryland, t&. — Dan- 
iel Dulany, the defender of the proclamation, 387 — Controversy upon this 
subject between Dulany and Charles Carroll, of Canollton, 388 — Charac- 
ter of their essays, 389 — Results of the discussion, 391 — Discussion be- 
tween Mr. Hammond, and Messrs. Chase, Johnson and Paca, 392 — Pro- 
ceedings of the Lower House in 1771, in opposition to the proclamation, 
394— New election in 1773, 396— Origin of the Vestry Act question, 397, 
— Condition of the church establishment, 398 — Grounds and conduct of 
the controversy upon the Vestry Act, 399 — Attempts of the East India 
Company to introduce Tea into America: and their results, 401 — Boston 
Port Bill, and its reception in Maryland, 402 — General Convention at An- 
napolis, 404 — Tea burning at Annapolis, 408 — Proceedings of the first 
Continental Congress, 410 — Association recommended by it, adopted by 
the Maryland Convention, 411 — General efficacy of this Association, ib. — 
Mode in which enforced in Maryland, 412— Preparations for hostilities, 
414 — Adoption of a Provisional Government, 415 — Synopsis of the Provi- 
sional Government, 41G — Modifications of this Government, 421 — Its 
character and results, 423 — Its objects, 424 — Independence, not the 
original design of the colonies, 425 — Objects of the colonies in their 
repeated disclaimers of this design, 426 — Instructions of the Conven- 
tion to the Delegates in Congress, of 12th Jan. 1776, 427— Declaration of 
18th Jan. 1776, 429 — Course of this colony upon the proposition to de- 
clare independence, ib. — Its concurrence in the proposition, 431 — Mary- 
land Declaration of Independence, 432. 

CII.lTER VII. 

Distribution of the Legislative power under the State Government 
of Maryland. 

CHAPTER VIII. 

Organization of the House of Delegates. 

Qualifications of voters, 443 — Qualifications for the office of Delegate, 448 
— The manner of election, 453— Peculiarities of these elections in the 
cities of Baltimore and Annapolis, 462 — Elections to fill vacancies, 463 — 
Distribution of the right of representation, 464 — Tenure and compensa- 
tien of the office of Delegate, 472. 



xvi CONTENTS. 

CHAPTER IX. 

The Organization of the Senate. 

The election of the Electors of the Senate, 473 — Their proceedings in the 
choice of a Senate, 474 — The qualifications for the office of Senator, 475 
— The mode of filling vacancies in the Senate, ib. — The tenure and com- 
pensation of the office of Senator, 476 — The nature and tendencies of the 
present structure of the Senate, ib. 

CHAPTER X. 

The Powers of the General Assembly. 

The sources and efficacy of the restrictions upon its legislative power, 491 
— The particular restrictions under the State government, relative to the 
nature of this power, 499 — The restrictions protective of constitutional 
institutions, 503 — The restrictions flowing from the declared rights of the 
citizen, 504 — Those relative to the enactment and publication of laws, 
508 — The incidental powers of the General Assembly, 509 — The time and 
place of meeting of the General Assembly, ib. 

CHAPTER XI. 

The several powers of each House of Assembly. 
The powers relative to their several organization, 511 — The obtention of in- 
formation, 518 — Their right of self-protection, ib. — The peculiar powers 
of the two Houses, 522 — Those of the House of Delegates, as to Money 
bills, 523 — The expulsion of its Members, 525— 'Its capacities as the Grand 
Inquest of the State, 528 — Its control over the revenue of the State, t6. 

CHAPTER XII. 

The privileges and disabilities of members of Assembly. 
Their exemption from legal process, 530 — Freedom of debate, 534 — Ex- 
emption from military duty, and from service as jurors, ib — The Disabil- 
ities of Members of Assembly, ib. 



INTRODUCTION. 



CHAPTER I. 

OF THE GRANT AND TERRITORIAL LIMITS OF THE STATE OF 
MARYLAND. 

orieinai oxtflnt The Province of Maryland, as granted by Charles 
of the province. j to Cecilius, Baron. of Baltimore, included under 
the descriptive terms of the grant, "All that pait of the penin- 
sula or cheraonese, lying in the parts of America between the 
ocean on the east, and the bay of Chesapeake on the west, di- 
\ ided from the residue thereof by a right line drawn from the pro- 
montory or head land, called Watkin's Point, situate upon the 
bay aforesaid, and near the river pf Wighco on the west, unto the 
main ocean on the east, and between that boundary on the south, 
unto that part of the bay of Delaware on the north, which lift h 
under the fortieth degree of latitude, where New-England is ter- 
minated : and all the tract of land Within the following limits, to 
wit, passing frOm the said Delaware I5a\ in a right line with the 
degree aforesaid, unto the true meridian of the first fountain of 
the river Potomac, thence running towards the south unto the 
further bank of the said river, and following the same on the west 
and south, unto ;i certain place called 'Cinquack,' situate near 
the mouth of said river, where ii empties into the aforesaid bay 
of Chesapeake, and thence by the shortest line unto the aforesaid 
place or promontory, called Watkin's Point." (1) 

(1) Thi- i of the bounds of the Province, was manifestly fram- 

ed by the aid <>f the map accompanying thai rare work, Smith' I 
i nia, which shows the true position of some of the places designated in the 
charter by names long sine* lost. On examination of thai map, it will be 
found that the river UUgljco, there located, i> the riv< r Pocomoke of the pre- 
ij ; and th it the place called ••( inquai I.," corresponds t<> \\ ba1 i- now 
ealted --muiiIi's Point " This place has, indeed, been different) j located; 
but it is expressly acknowledged to be Smith's Point, by the compacl ol 1 1 • ■ 



2 THE GRANT AND TERRITORIAL LIMITS [Intro. 

It will, at once, be perceived, that these boundaries of the Pro- 
vince are essentially different from those which, at this day, de- 
fine the limits of the State; and in contrasting them, it will be 
seen with regret, that Maryland has been deprived of some of 
the fairest portions of her original territory. It is not our purpose 
to enter into a minute detail of all the circumstances which have 
occasioned this loss. The full narration of these belongs, pecu- 
liarly to the civil history of the State. For the purposes of this 
work, it will be sufficient to enquire into the causes of the grant, 
the circumstances under which it was made, and the prominent 
causes and results of the territorial controversies to which it has 
given rise. A brief view of these is necessary, to exhibit to the 
reader the present contracted limits of the State, and to account 
for their incongruity with the limits assigned by the charter. 
The antecedent The claim of the English crown to the conti- 

grants to the . . _ , , 

London and Ply nent of JN orth America, was founded upon the 

mouth. Compa- . . . 

nies. discovery and partial exploration of its coast, by 

Sebastian Cabot, in the year 1498. The first efforts at a set- 
tlement upon this continent which were made under the author- 
ity of the English government, were unsuccessful and discour- 
aging. The ardor for voyages of discovery and for schemes of 
colonization, was much abated by the unsuccessful attempts ot 
Gilbert and Raleigh. The disastrous result of the expeditions 
set on foot by them, was well calculated to enhance, in general 
estimation, the difficulties and dangers incident to such enter- 
prises: and the discoveries which had been made under their 
conduct, presented no object sufficiently alluring, to tempt even 
the bold and adventurous to encounter the hazard and expense 
of a similar attempt. About the commencement of the seven- 

between the States of Virginia and Maryland, relative to the navigation of, 
and jurisdiction over, the Chesapeake Bay, and the rivers Potomac and Poco- 
moke, which will be seen in detail at the conclusion of this chapter. In 
passing, we cannot refrain from expressing the regret that this work of the 
celebrated John Smith is so little known to the citizensof our State. Itcdn- 
tains an account of his exploration of the Chesapeake Bay and the country 
adjacent, full of interesting details, and illustrated by a map, which, as to 
the Bay, and the country adjacent to it, and the mouth of its tributary 
streams, even to the mouth of the Susquehanna, may safely challenge a 
comparison in point of accuracy, with the maps of this day — It was re- 
published at Richmond, in 1819. 



Chap. I] OF THE STATE OF MARYLAND. .} 

teenth century, the spirit, which had bo long slumbered, began 
to revive, and upon the accession of James I. to the English 
throne, with whom the establishment of colonies appears to 
have been a favourite measure, an application was preferred to 
him, by a number of persons of great wealth and influence, for 
permission to plant colonies within the limits of Virginia, that 
being then the name applied by the English to the whole conti- 
nent. Their application was successful, and accordingly in 
160G, they were empowered by a grant from him, to make settle- 
ments between the 34th and 45th degrees of North latitude. 
The association under whose conduct these settlements were to 
be made, was, at the instance of its members, divided into two 
companies, the first of which, called "The London Company," 
was required to make its settlements between the 34th and 41st 
degrees of North latitude, and the second, which was called 
" The Plymouth and Exeter Company,", was permitted to make 
its settlements between the 38th and 45th degrees, but no set- 
tlement was to be made by either of them, within one hundred 
miles of any prior settlement of the other. (2) 

New and exciu- The latter company, under whose auspices the 

si\.' grant to the , XT , ~ . 

piji.ioutii com- second or .Northern Colony was to have been 

pauy. . . . 

planted, alter two unsuccessful attempts, which 
seemed to enhance the difficulties and diminish the benefits of 
the enterprise, were content for some time alter their grant, to 
abandon their original design, and to confine themselves to the 
benefits of a few voyages to it, for commercial purposes. The 
conduct of one of these voyages was entrusted to the celebrated 
John Smith, who had already acquired so high a reputation by 
the enterprise, perseverance and ability which he had displayed, 
in the establishment and sustention of the Southern Colony. 
Ili^ sagacity soon perceived the extern and fertility of the re- 
sources of this region, hitherto deemed h;irren and inhospitable, 
and his glowing representations of its genera] aspeel and its ca- 
pacities, were Buch as to procure tor it from prince Charles, the 
Battering appellation of "New England." (3) Sustained, as 

(2) Thii charter to the Northern ami Southern, oi I sond Colo- 
nic* of Virginia, was granted on the I Ota of \|>nl, 1606, and maj be seen 
at large, in l-i Hazard's State Papers, 50 to 58. 

(3) This is the account of the origin of the name given b] Chalmi n in 

Li'. Historical Annals- but Smith, in lh:.l CUriotU and Interesting i' >|" i 



4 THE GRANT AND TERRITORIAL LIMITS [Intro. 

they were, by his well earned reputation, they contributed largely 
to dispel those unfavourable notions, as to its soil and climate, 
which had been propagated by those who had made the former 
unsuccessful attempts at its settlement. At this time, tho com- 
merce of this region was gradually increasing, and the French 
and Dutch, and even the Southern Company, were labouring 
strenuously to engross it for themselves, or at least to divide its 
benefits with the Northern Company. Roused to a sense of the 
consequences of these efforts, the latter company asserted its 
exclusive right to the trade of New England, and endeavoured 
to fortify its claim by a new grant. Their application for this 
grant, although strenuously resisted, was ultimately successful : 
and in 1620, they and others, their associates, were incorporated 
by the name of "Tlie Council of Plymouth for the planting and 
governing of that country called New England," and in this coN 
porate capacity, were invested with the right" of soil and go- 
vernment, over all the territory on the continent of north- Ame- 
rica, lying between the 40th and 4Sth degrees of north latifude, 
and the exclusive privilege of fishing and trading therein." (4) 
The settlements This was the outstanding grant from the English 
moutbGraAt an- crown, of the territory immediately North of the 
eiiarterofMary 6 - northern limits of Maryland, at the time of the 
grant to Lord Baltimore. Its southern limits, it 
will be perceived, began at the degree which constituted the 
northern boundary of Maryland: and with this common boun- 
dary so well defined, no room was left for controversy, except 
as to the location of the degree. At the time of the grant to 
Lord Baltimore, the only settlements which had been made 
within New England, were those of New Plymouth and of 
Massachusetts Bay. The New Plymouth Colony consisted of 
emigrants from Holland, who had removed from England but a 
few years before, because of the peculiar religious opinions 
which they entertained, and which acquired for them the name 
of Brownists. It was their original design to have made a set- 
tlement in Virginia, (as the site of the Southern Colony was 

titled "Smith's description of New England," informs us, that the name was 
bestowed upon it by himself. 

(4) This charter to the Plymouth Company, will be found in Hazard's 
State Papers, 103 to 118. 



Chap. 1-1 OF TUT. STATE OF MARYLAND. 5 

{Ucn ca ued,) nn-lnnn extensive grant, which hid been made to 
then, l.x the Virginia Company, Occident cist them upon -di* 
N(U England coast, where, from the period of their arrival, in 
Lf>20, until 1630, they remained, without anj other title to the 1 
soil than thai which mere occupancy gave them', exhibiting m 
the organization of their society- a complete exemplification of 
thai social ru,„|. ; ,d, which has usu:,llv been deemed a ph.loso- 
phic fiction. In the latter yea* they obtained a grant from the 
Council of Plymouth, under which they were living when Ma- 
ryland was granted. The"kassachnsetts Bay Colony-Was plants 
edin 1639, under a grant from the Plymouth Company, „l all 
the lands "between the Merrimack, and Charles rivers, which 
was confirmed and extended by a charter from Charles 1. ... 
1628. (5) The origin and establishment of these Colonies is 
already nTatter of history, and it will, therefore, suffice to say, 
that confined, as they were, at the time of Lord Baltimore's 
.rant, within win are the limits of the present State of Massa- 
chusetts, they were so remote from the common boundary thai 
no distentions about that boundary ever arose between the Ply- 
mouth Compaq or its grantees, and the Colonists of Maryland. 
The rights of that company had been long extinct, and several 
distinct colonial governments had been carved out of them, be- 
fore the proprietary of Maryland was involved in OOntests about 
his northern limits: and all of these arose from grants subse- 

qnent to his own. 

We have seen, that under the first charter from 

TliosovnrnMinr- , 

to the Loii- ,.: rnmea the first or Southern company, wnicn 

dun Company, '■" - , . 

^mpUon'byuS was'called the London Company, was permitted to 
crown. mateits Settlements any where between I he ."{sih 

and 15th degrees, subject to the restriction above mentioned, 
M to the contiguity of their respective settlements. In 1609, 
,lns company obtained from king .lames, a new 7 charter, which 
severed it from the Northern Company, and incorporated its 
members and others, whom they had received as associates, 
Bn der the name of " the Treasurer and Company of Adventurers 
of the City of London, for the first Colony of Virginia," and to 
them were granted the right! of soil an J government, in all the 

(r>) Th ,..,. Plymouth and Maasachuaetta Baj Col aica, will 

be seen in 1st Hazard 1 ! SI ita P ani •' : '''• , • 



6 THE GRANT AND TERRITORIAL LIMITS [Intro. 

lands north and south of Cape Comfort, to the extent of two 
hundred miles, in both directions. A third charter was oranted 
in 1611, which did not vary these limits on the main land. (6) 
Under these charter governments, the Colony of Virginia re- 
mained until the year 1623, when, in consequence of the refusal 
of the company, to surrender their charters, and to accept in 
their stead, such a charter as the king might be pleased to grant, 
a quo warranto was issued, on which judgment' was given 
against the company, its charters annulled, and the rights grant- 
ed by them revested in the crown. From that period, Virginia 
became what was termed "A Royal Government," and as such, 
there was an inherent right m the crown, to alter and contract 
its boundaries, or to carve new and distinct territories or g6vern- 
ments out of it, at its pleasure. Yet, incontestible as this right 
was, it will be seen that the exercise of it, in granting the pro- 
vince of Maryland, was the source of much dissatisfaction 
amongst the colonists of Virginia; and that at one period, at- 
tempts were made to assert and maintain the existence of the 
charter government, notwithstanding the judgment on the quo 
warranto, for the sole purpose of reclaiming the territory of Ma- 
ryland, as lying within the old charter limits, 
ciaybomc's set- Although the Colony of Virginia, as it was re- 
vested in the crown, retained its ancient limits, for- 
tunately for the security of Lord Baltimore's grant, no settle- 
ments had been made antecedently to it, upon the lands in- 
cluded within his grant, either under the authority of the crown 
or of the charter governments, except those made by a small 
colony which was seated on Kent Island, in the Chesapeake 
Bay, by the notorious William Clayborne. Of the character and 
temper of this man, it is difficult for us at this day to form any 
just conceptions. The accounts which we have of him, have 
been transmitted to us by writers, who seem to have had no end 
in view, but to lavish upon him the most opprobrious epithets. 
The name of Machiavel has never been more shocking to 
moralists and white-washed politicians, than was that of Wil- 
liam Clayborne, to the first colonists of Maryland. Even histo- 
rians familiarly call him the evil genius of the colony, and so he 

(6) These charters of 1606, 1609 and 1611, are given at large in 
Hazard's State Papers, 50, 53 and 72. 



Chap. I.] OF THE STATE OF MARYLAND. 7 

unquestionably was, if his unceasing efforts to maintain by 
courage and address, the territory which his entcrprize had dia- 
COvered and planted, entitled him to the name. A reference to 
the early contests of this man with the proprietary and his offi- 
cers, abundantly demonstrates thai he stood not alone in them, 
and that the government of Virginia, fearing to put itself in di- 
rect opposition to the Will of the king, and to his command to 
give Lord Baltimore all lawful assistance in the colonization of 
Maryland, was yet muttering dissatisfaction, and secretly insti- 
gating Clayborne to those acts of violence, which ultimately 
caused his attainder and expulsion from the province. That 
Clayborne was possessed of courage, enterprize and talents, 
cannot be doubted. That he added to these, many virtues 
which alleviated the harsh and rugged character ascribed to him 
by the writers of that day, is highly probable. The records of 
\ irginia, and the recitals of the license to trade, granted him by 
the crown, inform us that he was, at the time of its grant, the 
Secretary of State for the government of Virginia, and also one 
of its council. (7) He appears to have directed his attention to 
the commerce of the Chesapeake Bay, for some years before he 
made any settlements within it: and his first expeditions were 
conducted entirely under the authority of the English govern- 
ment. During the several years, 1626, 1627 and Ki^S, he re- 
ceived from that government licenses to trade, under which he 
was authorised to discover the source of the Chesapeake, or any 
part of the government of Virginia, from the 34th to the. 41st 
degrees of north latitude. Not content with this, he obtained 
from king Charles I. in May, 1631, a license to trade in all the 
seas, coasts, harbors or territories, in or near to those parts of 
America, for the sole trade with whirl) there had been no previ- 
"ii- grant from the crown. Under this license, and one shortly 
afterward-; obtained from the governor of Virginia, his settle- 
ment-- upon Kent [aland were made; and being so made, they 
were subordinate to and dependent upon the government of Vir- 
ginia. They were not only regarded a- planted under its aulho- 

(1) The recitals of his oommi Bcretary of State for the Colony 

of Virginia, granted in L635 and l(S7, speak of Clayborne as b persona/ 
</«<//»/!( -I mi (mat, and abundantly evidence the high estimation in which he 

".i- thi a held. 



8 THE GRANT AND TERRITORIAL LIMITS [Intro. 

rity,but we arc also informed that before Lord Baltimore's grant, 
they had even sent Burgesses to the Assembly of Virginia, (8) 
a privilege which they could not have exercised very frequently 
durin-x the administration of governor Harvey, who ruled in 
Virginia, as did king Charles in the mother country, without the 
aid of Assemblies. (9) 

Such were the origin, extent and condition of the English set- 
tlements, adjacent to or within the province of Maryland, when 
it was granted to Lord Baltimore. The causes of this grant, the 
circumstances which impelled Lord Baltimore to seek it, and the 
motives which induced king Charles to yield to his application, 
all serve to explain the grant itself, which was in its general charac- 
ter peculiarly favourable, both to the proprietary and the colonists, 
and which embodied in it provisions for the security of the poli- 
tical and civil liberty of the latter, in direct conflict with the known 
temper of the English crown at that day. We naturally ask, 
whence came these peculiar features of the charter; and, there- 
fore, tfie reply to this question makes a part of the history of the 
<n-ant. The examination of these features belongs to another 
part of this work. At present, it is only necessary to enquire 
into the circumstances under which the grant was made, as ex- 
planatory of its character. 

Cecilius, Baron of Baltimore, to whom the chni- 
SKauflSw ter was granted, was not the grantee for whom it 
° bUimea - was originally intended. The application lor it 

came from, and the success of that application is due to, his 
father George Calvert, with whom the design of obtain.ng and 
colonizing the province originated. He lived only to sec all 
difficulties removed, to have all his wishes as to the terns of the 
grant complied with, and to leave as an inheritance to his heir, 
a title to it, based upon the highest moral considerations, and 
perfected in all but the legal forms. Calvert who was thus the 

(8) Chalmers. , 

(9) This was certainly the general character and tendency of Harvey s 
administration, although, - is shewn by Mr. Burke in his History of Vir- 
ginia, Robertson and other writers upon the affairs of that colony, were 
mistaken in supposing .hat no Assemblies were held during that adnunistra- 

tion. It appears that there were several sessions of \ >'-b during that 

period, at one of Which there was a general revisflol the laws of the colo- 
ny. Burke's History of Virginia, 'Jd vol. 41. 



Chap. |.] OF THE STATE OF MARYLAND. 9 

founder of the title, and fortunes'of his family, was born in York- 
shire, in the year 1582. At an early age he became the secreta- 
ry of Sir Robert Cecil, through whose influence and patronage 
he was made clerk of the Privy Council, and ultimately became 
secretary of state to James I. The latter office he resigned 
in 1G24, because of his conversion to the principles of the 
Roman Catholic religion. Notwithstanding his avowal of these, 
and his resignation, he seems to have lost none of the royal 
favor which he previously enjoyed, inasmuch as he was con- 
tinued in the Privy Council, and received in the succeeding year 
the honors of knighthood, with the title of Baron of Baltimore, in 
the kingdom of Ireland. He had represented Yorkshire in Par- 
liament, and was, at the time of receiving knighthood, the repre- 
sentative of the University of, Oxford. (10) During his secreta- 
ryship he obtained a grant of the province of Avalon, in New- 
foundland, where he made some efforts at a settlement, which, 
although they did not answer his expectations, instead of repress- 
ing his ardor for projects of colonization, had only the effect of 
directing his enterprising spirit in search of some more favora- 
ble location. Animated by this desire, he visited Virginia, and 
his sagacity at once perceived the advantages which were likely 
to result from settlements upon the Chesapeake Bay, and the fa- 
cilities for their establishment presented by the adjacent country, 
of which the colonists of Virginia had availed themselves only, 
by the establishment of a few trading houses. (11) On his return 

(10) For these details connected with the History of the Founder of Ma- 
ryland, see Chalmer's Historical Annals, and Bozman's Introduction to the 
History of Maryland, 231 to 234. 

(11) The purposes of his visit to Virginia do not distinctly appear. If he 
had any views as to a permanent settlement within Virginia, they were all 
frustrated by the requisition made of him by the Assembly of that colony im- 
mediately upon bis arrival there, that he Bhould take, the oaths of allegiance 
am! supremacy, the latter of which, as requiring his acknowledgment of the 
King as the head of the church, was inconsistent with Wis peculiar religious, 
tenets. It was therefore promptl/fefused. It is said by Anderson, on the au- 
thority of Keith, that be int. \ •,-. ith bis family to some part of 
Virginia, that he I y the IVee i religion: hut that 
in consequence of the opposition made^o him 

be left it to explore the I rchofa settli m< nt, and Bnding 

the country adjacent admirable adapted to his purposes, and as 
ne returned instantly to England to procure the grant of it. 2 Burke's Hit- 
2 



10 THE GRANT AND TERRITORIAL LIMITS [Intro. 

to England, he preferred his application for the grant of the pro- 
vince of Maryland, and sustained, as it was, by the considera- 
tions of distinguished services, untiring enterprise, and great 
moral worth, it was readily acceded to by the pliant king 
Charles, who never knew how to refuse the requests of favorites. 
It has been inferred by some, from the tenor of the character itself, 
and the extreme care with which the rights of the proprietary 
are guarded by it, whilst the prerogatives of the crown and the 
eminent dominion of the mother country, are almost as cau- 
tiously excluded from view, that it was the work of Calvert him- 
self: but, be that as it may, there is but little doubt that the facile 
Charles permitted him to dictate its terms. Early in 1632, and 
when his charter was just ready for its passage under the great 
seal he died, leaving the fruition of his grant to his son and 
heir Cecilius Calvert, to whom the charter of Maryland was 
finally granted on the 20th of June, 1632. 

This brief view of the circumstances under which 
SSSKSi the grant was made, will conduct us at once to the 
SSSHSS prominent causes and results of the temtonal con- 
gSri were in- troversies to which the charter has given rise. The 
v ' olved - prior establishment of the colony of Virginia, and 

the settlements of Claybome ;-the true location of Watkin's 
Point —the settlements of the Swedes and Dutch upon the 
Delaware ;-the grants to Pcnn,-and the designation of the first 
waters of the Potomac, as the common boundary, at which the 
Western and Southern boundary lines of Maryland unite, have 
all <men rise to controversies conspiring in their results to reduce 
^province of Maryland to its present limits. These will be 
briefly considered in the order in which they have been enume- 
rated, which is also the order of their origin. 

The causes of the dissatisfaction of the colonist* 

SSSjs ° f vir § inia with the grant to Lord Baltimore ' have 

n^t's of Virginia. a i re ady been partially disclosed. The grant lay 
within the limits of Virginia, as established under its charter go- 
vernment, and when these charters were annulled, and it became 
a royal government, it continued to retain its ancient limits until 
the period of this grant. The government of Virginia had also 
from time to time exercised its jurisdiction over the countries, 
tory of Virginia, 25 Bozman, 236. Anderson's Historical Deduction of Com. 
merce, Vol. II. 466. 



Chap. I] OF THE STATE OF MARYLAND. 11 

adjacent to the Chesapeake Bay, in the grant of licenses to trade 
therein, and the growing and prosperous settlement of Clayborne 
upon Kent Island, which was in subjection to that government, 
was just unfolding the resources of this territory, when it was 
granted to Lord Baltimore. The colonists of Virginia, therefore, 
felt all the indignation which a people would naturally feel, whose 
enterprise had opened new sources of wealth, which were left 
open only until they began to realise all the hopes which they 
had awakened, and were then closed against them, in the very 
moment of fruition, whilst a more favoured people, who, in their 
opinion, had borne none of the heat and burden of the day, were 
seated, to their exclusion,- in the midst of all the benefits of their 
discoveries. They saw, with deep regret, that they had been 
mere purveyors to the designs of the proprietary of Maryland", 
and with the feelings, which disappointment, in the moment of 
enjoyment never fails to excite, their imagination saw more in 
the advantages * which they had lost, than they would have dis- 
covered in the actual possession and enjoyment of them. They, 
therefore, received with a very ill grace the command of their sov- 
ereign, to yield every facility to Lord Baltimore, in his project of 
colonization, and were determined to omit no efforts to reclaim 
the territory which they had lost. Hence, shortly after the grant, 
a petition was preferred to the king by the planters of Virginia, 
in which they complain " that grants have lately been made of a 
great portion of the lands and territory of their colony, being the 
places of their traffic, and so near to their habitations, as will give 
a general disheartening to the planters, if they be divided into 
several governments : and a bar be put to that trade which they 
have long since exercised for supportation and relief, under the 
confidence of his majesty's gracious and royal intentions towards 
them." This petition was finally acted upon in the star chamber 
in July, Wi'i, when it was adjudged by the Privy Council, thai 
Lord Baltimore should be left in possession of this grant, and the 
petitioners t<> their remedies at law, if they had any such, and 
that in the mean time, free commerce between the two colonics 
should be permitted, and thai they should keep up a good 
< orrrspondencr- with, and should mutually aid each other as 
members of a common government. (12) A procrcdin/.' of the 

(12; Sen ttn - . racflal large in lft Hazard 337, and BozmanS&l, 

note S, which recites the petition preferred by the planters of Virginia. 



12 THE GRANT AND TERRITORIAL LIMITS [Intro. 

governor and council of Virginia very recently afterwards, is quite 
irreconcilable with these injunctions of the privy council, and 
forces upon us the conclusion, either that they were not then ap- 
prised of them, or were determined not to respect them. In 
March, 1634, a petition was preferred to them by Clayborne, in 
which he requests their advice as to the course he should pursue 
in his difficulties with Lord Baltimore. He apprised them that 
he and his colonists on Kent Island had been required, as resi- 
dents within the limits of Maryland, to renounce that state of 
dependence upon, and subordination to the government of Vir- 
ginia, in which they had hitherto lived. In their re^ly, the go- 
vernor and council express their surprise that Clayborne should 
ever have proposed such a question. They remarked, that they 
saw no reason for surrendering their right to the Isle of Kent, or 
to any other territory formerly granted to their colony by his ma- 
jesty's patent. "And, as" say they, « the right to my lord's patent is 
yet undetermined in England, we are bound in duty, and by.our 
oaths, to maintain the rights and privileges of the colony. Never- 
theless, in humble submission to his majesty's pleasure, we will 
keep a good correspondence with them, not doubting that they 
will not entrench upon the rights of his majesty's plantation. (Id) 
Yet this decision of the Privy Council appears to have been ac- 
quiesced in for some time: and even when the proprietary was 
driven to extremities by the resistance of Clayborne ; and the lat- 
* ter was expelled from the province, and attainted, no open effort 
was made by the government of Virginia to sustain Clayborne s 
claims It is probable that this acquiescence was occasioned 
rather by the exigencies of the colony of Virginia, than by its 
respect for the will of the king. The condition of the latter from 
the year 1625, when it became a royal government, down to the 
year 1639, at which period Sir William Berkely became Us go- 
vernor, was truly deplorable. Throughout this interval it was 
in a great degree, under the uncontrolled sway of its governor 
and council. They legislated for it ; imposed taxes upon it with- 
out its consent ; disposed of the public property at their pleasure, 
and croverned the colonists as a conquered and vassal people. 
(14) Harvey, their despotic governor, was at length recalled in 

(13) Chalmers. , 

(14) It has already beea remarked in note 8th to this chapter, that the 



Chap. L] OV THE STATE OF MARYLAND. 13 

1638, and the govern,,,,,,, of the colony was dommitted to the 
mi ld and amiable Sir William Bcrkcly, V hose instructions requir- 
ed and whose temper approved a much more, liberal system of 
government. Yet delighted, as the people of Virginia were, 
with the substitution of Berkely for Harvey, the instructions to 
the former, enjoined restrictions upon their trade, in winch may 
be seen the germ of the exclusive claim to the colonial trade ever 
afterwards asserted by the mother country, and the sources of 
much dissatisfaction to the colonists. (15) In the meanwhile 
the discontents of the mother- country were momently increas- 
in* Charles I. who had resobed to govern, without the a,d oi 
parliament, found it necessary to summon them again at a period 
when they served no. other purpose than to hasten his downfall. 
In this state of things in the colony, and in the mother country, 
the malcontents of Virginia conceived the design of attempting to 
brin. about the restoration of the old chartered government, and 
of thereby reducing the colony of Maryland under their dominion. 
Fortified by the opinions of some eminent lawyers, who held that 
the old charters of Virginia were still in force, notwithstanding 
the judgment on the quo warranto in 1604, and that therefore the 
charter°of Maryland was void, they presented a petition to the 
House of Commons, in the name of the Assembly of Virginia, m 
which they prayed for the restoration of the ancient patents. 
This design was speedily contracted by the governor, council and 
burgesses of that colony, who, in their address to the king ex- 
pressly disavowed the petition which had been preferred in their 
names, expressed an earnest desire to remain under his immedi- 
ate government, and remonstrated against the restoration of the 
charters. The king's reply of July, 1643, put to rest all their fears 

writers who trcatof the condition of the Virginia colony at this period have 
generally been mistaken in supposing that there were no assembles held ,,, it 
during Harvey's administration. Burke has corrected their errors id tins 
respect : yet it is manifest from Burke's account of the condil to*rf the cok^ 
during that period,that they were not mistaken as to thecal ^oteroi 

the aLnktktion. Throughout it, the government *« rathe, . of procla, 

.nations, than of to and these „,„;„„:,„„„ rfl ta» Tj^onlj «£ 

what probably belonged to legislate, but were regarded u baving all 

binding force. , .,n 

(IS) Sec these Instruction in Chalmcr's Historical Aunals, 133 and 33. 



14 THE GRANT AND TERRITORIAL LIMITS [Intro. 

on this score. (16) From this period, until the assumption of the 
government of Maryland, by the Commonwealth's commissioners, 
these claims of Virginia appear to have slept. Whilst Maryland 
remained in the hands of these commissioners, amongst whom 
was Clayborne, the protector was urged by some of them, and 
their agents, to take its government wholly and forever out of the 
hands of the proprietary, and to re-attach it to Virginia as a legi- 
timate portion of that colony. The reader, who desires to see 
the various objections which were urged against Lord Baltimore's 
patent at that day, and the correspondence by which these claims 
of Virginia were reasserted, will see them at large in Hazard's state 
papers, vol. II. 594 to 630, and Thurlow's State Papers, vol. V. 
It will here suffice to remark that the protector gave no counte- 
nance to these claims; and that they were at length extinguish- 
ed by the surrender of the province of Maryland, in 1658, to 
Fendall, the proprietary's governor, and do not appear to have 
ever been revived. (17) 
ciayborne's flight Clayborne's claims, although not of longer' con- 

and attainder. *• ,i „, ,, , ° 

tinuancethan those of the colony of Virginia, were 
much more warmly upheld, and were productive of much more 
calamitous consequences to the province. We have already 
seen in what manner, at what time, and under what authority, 
his settlements were made, and that at the time of Lord Balti- 
more's grant they were subordinate to the government of Virgi- 
nia. His petition to the latter in 1634, and their reply have 
already been noticed. That reply it will be remembered, al- 
though made some months after the adjudication of the privy 
council, overruling the objections to fhe grant, yet asserted the 
claim of Virginia to dominion over Clayborne's settlements, in 
the most emphatic terms. Animated by this, Clayborne, who 

(16) See Chalmers, 133. 

(17) The various negotiations for this surrender, and the articles of agree- 
ment by which it was consummated, may be seen in Council Chamber Records, 
Liber H. H. 12 to 20. The principal stipulations of the articles were for a 
general indemnity from the year 1G49, for the payment of fees and taxes in 
arrear ; for relief from the oath of fealty, in lieu of which the colonists were 
permitted to take and subscribe an engagement to submit to the authority of 
the proprietary, for the security of Acts or Orders of Assembly, passed since 
1654, which were not to be declared void, because of any irregularity in the 
government, and for permission to the colonists to retain their arms. 



Chap. I.] OF THE STATE OF MARYLAND. 15 

seems not to have objected to the claim of sovereignty on tne 
part of Virginia, under which his colony had grown up, contin- 
ued strenuously to refuse obedience to the proprietary's demand 
of submission. In September, 1G34, the proprietary gave orders 
to seize him, in the event of his refusal to submit; and after re- 
peated efforts to rouse the jealousies of the savages, and to ex- 
cite commotions in the province, he was at length obliged to fly 
from it to Virginia. Determined to maintain his possessions by 
force, and, if practicable, to drive the colonists from the piovince, 
he had fitted out an armed vessel to commit depredations upon 
their property; but the immediate capture of that vessel deprived 
him of his last resource, and left him no hopes of safety but in 
flight. In Virginia, he had reason to expect security, from his 
past connexion with its government: but he had scarcely taken 
refuge there, before Commissioners were deputed from Maryland 
to demand his surrender. Harvey, the governor of Virginia, of 
whom this demand was made, and who appears to have had some 
connexion with Clayborne's enterprises, was too critically situat- 
ed, at that period, to avow the connexion, or to afford open 
countenance to his pretensions: but, under pretence of high 
respect for Clayborne'^s license from the crown, he declined 
surrendering him to- the Commissioners, but sent him under 
their charges to England, to await the decision of the King. 
Being thus put beyond the reach of the proprietary, he was 
attainted, and his property seized as forfeit. (18) After his 
return to England, he petitioned the king for a confirma- 
tion of his former license to trade, for a grant of other lands 
adjoining Kent Island, and for the power to govern them. To 
the influence of Sir William Alexander, who was the king's 
Secretary of State for the kingdom of Scotland, when Clay- 
borne's license was granted, and who was his associate in 
that license, may be attributed the king's order pending this 
petition. That order, after reciting the former license and its 
frrants, sets forth that Lord Baltimore had notice 

Ou king in coon- f •. existence, and that contrary to its mjunc- 
ni, and tin' ordoi '" " v -» . 

iaeoudl ON* tinn , |( , a|l( f ln , agents had possessed themselves, 

(H) Counril Chamber Record* : Assembly Proceedings, from 1636 to 
1657, pages 26, 27 and 31. Bozman, 280 and 327. 2d Burke's Virgin*, 
41, and Chalmer'. Annals, 210 and 232. 



16 THE GRANT AND TERRITORIAL LIMITS. [Intro. 

by night, of Kent Island, and had seized and carried away the 
persons and estates of its planters, and that the king had referred 
to the commissioners of plantations the enquiry into the truth 
of these allegations. It then concluded with a mandate to Lord 
Baltimore and his agents, enjoining them to permit the settlers 
on Kent Island, to enjoy their possessions in peace, until that 
board had acted upon the subject. In Clayborne's petition, 
which elicited this order, he represents to the king, that he had 
not only made settlements upon Kent Island, but that he had 
also, at the instance of the Indians, made a settlement and es- 
tablished a factory, on a small island at the mouth of the river,, 
at the bottom of the bay, in the Susquehanna country, by which 
he hoped to secure the fur trade from the lakes of Canada; that 
the injunctions of his license to trade had been wholly disregard- 
ed by the agents of the proprietary: that his boats and goods 
had been seized, his men slain, and himself accused of crimes, 
and dispossessed, or about to be dispossessed of all his settle- 
ments. It then concludes with a prayer, that the king would 
grant to him his settlements on Kent Island, and in the Susque- 
hanna country, and the adjacent territory southerly, for twelve 
leagues from the mouth of said river, down the bay, on each side, 
and northerly to the head of the river, and the great lakes of 
Canada. 

The reference of this petition to the commissioners, was made 
in February, 1637, (old stile) and in April, 1638, they finally ad- 
judicated upon it. This adjudication determined, that the right to 
all the territory within which Clayborne's settlements were made, 
was vested in Lord Baltimore ; that no settlements ought to be 
made, or commerce carried on in it, or with it, without his li- 
cense, and that no grant to it should be made to any other per- 
son. (19) From this period the claim of Clayborne does not 
appear to have been ever asserted before a proper tribunal; yet, 

(19) See Clayborne's petition, and the order of the king in council there- 
on, in Council Records, Liber Council Proceedings, from 1636 to 1657 — 4 to 
10, and in 1st Hazard's Collection, 430. The authenticity of these papers 
was denied by the Penns in their bill in chancery against Lord Baltimore, 
upon the agreement of 1732: but their genuineness is fully sustained by the 
facts set forth in Bozman, 338 to 342; and by the above order of the king 
pending the petition, which is extracted by Chalmers from the English Coun- 
cil Records. 



Chap, I.] OF THE STATE OF MARYLAND. 17 

although abandoned, it begat and nourished a deep rooted hos- 
tility to the proprietary and the colony, which never failed to 
manifest itself on every occasion. Having failed in his applica- 
tion to the king in council, he is, the next year, found in the 
attitude of a suppliant, to the governor and council of Mary- 
laud, praying for the restoration of his confiscated property. 
Even this request, the gratification of which would probably have 
operated upon Clayborne as a peace-offering, and which seems to 
have been due to him, from a regard to the circumstances under 
which his settlements were made, and that conviction of his title 
to them, under which he manifestly acted, was yet sternly de- 
nied. (-20) Had it been granted, it is probable that he would 
peaceably and silently have submitted to the decision against 
him. Its rejection made him, at all after times, the determined 
enemy of the colony, and hence, from that period, he lost no 
opportunity of exciting disturbances within it. All [his intrigu- 
er borne and m S arts were P ut forth: and" whilst the minds of the 
Jngie'srebeiiion. co i on i sts were agitated, and restless, from a view of 

the commotions of the mother country, associating himself with 
a certain Richard Ingle, who had previously been proclaimed a 
traitor to the king, and throwing himself upon the restlessness 
and discontent which then pervaded the province, he at length 
succeeded in exciting a rebellion against the proprietary's go- 
vernment, so formidable and so unexpected, that the governor 
was obliged to abandon the government, and to flee to Virginia 
for protection, early in the year 1G45. The powers of govern- 
ment were then assumed by him in conjunction with Ingle; nor 
irere they regained by the proprietary's officers until the close of 
the year 164(3 ; and perhaps, even then, more by the misrule of 
thr^e confederates, than by the foTce which the governor could 
bring to bear upon them. The deplorable consequences of this 
insurrection are felt at this day, in the loss of many of the records 
of the Province. (21) 

iv r, rdingg of The commonwealth cause to which Clayborne in- 

me and i- • i • ii-i i t 

other*, m i' i- clniffl, being at length triumphant, he, as a reward 

wkII's Couiinu- c . • I . ■ ■ i i i/> - i i 

Moner«. >"r nli early services in its behalf in the coloniesi 

Council Proceedings, from 1G36 to 1G.'<7, page 50. # 

I 2] 2d Burke's Virginia, 112. Bacon's Trcfaco to his edition of the laws, 
and Chalmers, 217. 
■i 



18 THE GRANT AND TERRITORIAL LIMITS [Intrc. 

was commissioned by the Council of State of the mother coun- 
try to subjugate the province, whence, but a short time before, 
he had been driven as a rebel. This commission, in which 
Fuller and others were associated with him, was issued in Sep- 
tember, 1651, and empowered them to reduce and govern the 
colonies within the Chesapeake Bay. (22) Virginia was soon re- 
duced, and in July, 1652, Stone, the proprietary's governor of Ma- 
ryland, acknowledged and submitted to the power of the common- 
wealth, and was permitted to retain and administer the government 
in the name of the keepers of the liberty of England. (23) In 
his hands it remained until July, 1654, at which time Cromwell's 
usurpation had commenced, when, after a spirited but disastrous 
effort on his part to maintain his power by force of arms, Stone 
was defeated and taken prisoner, and Clayborne and his associ- 
ates assumed the rule of the province in the name of the protec- 
tor, and appointed commissioners to administer it. (24) In April, 
165S, the government was restored to the proprietary by treaty, 
and with this surrender the claims of Virginia and of Clayborne, 
were at once and forever extinguished. (25) No attempt appears 
to have been made to revive them after this period, and the rest- 
less Clayborne, dispirited and prostrate after a life of extraordina- 
ry vicissitudes, was no longer known in the affairs of the colony, 
and soon sank into that state where the wicked cease from troub- 
ling, and the weary are at rest. 

The claim of Virginia to the province of Mary- 

Controversies ,■,,•■,<. 

with Virginia land, being thus forever put to rest, the adjustment 

growln<; out &f - , . , " - , " . • , 

the settlements of the boundaries between the two provinces be- 
on the southern 

part of the Eas- came the next source of contention. In all the 

tern Shore. „ 

grants of unexplored territory made by the English 
crown at that day, there is not one so precise and definite in its 
terms, nor one which is less susceptible of misconstruction, than 
that of the province of Maryland: and yet there is scarcely one 
which has given rise to more frequent, embittered and protracted 

. (22) See the instructions to these commissioners, in Hazard's Collection, 
556. 

(23) Chalmers, 221 and 222. Bacon's Preface. 

(24) Stone was condemned to be shot : but the soldiers, by whom he was 
beloved, refused to carry it into execution. Bacon's Preface. 

(25) See the articles of surrender in Council Chamber Records, Liber H. 
H. 12 to 20. 



Chap. I.] OF THE STATE OF MARYLAND. 19 

contests about its boundaries. It will, however, be perceived, 
that those controversies have not originated in the terms of the 
grant itself, but in claims adverse to the grant, unfortified indeed 
by principle, or any sound rule of construction, but in some in- 
stances sustained and promoted even by the crown. On the 
side of Virginia, there were but two unascertained points in its 
boundary line, and these were so described as to create no diffi- 
culty in their true location. The ascertainment of the first 
fountain of the Potomac and of Watkin's Point, was all that 
was necessary to render the southern and western boundary 
lines definite throughout. As the settlements of Virginia and 
Maryland were not extended to their" western borders, for a 
long period after the establishment of these colonies, their re- 
spective rights to western territory were not drawn into ques- 
tion until the middle of the eighteenth century. The location 
of their boundaries near the sea-board, along which their respec- 
tive settlements were rapidly progressing, soon became the sub- 
ject of enquiry: and hence the claim of Virginia to the province 
was scarcely at an end, when fresh disputes arose as to the situ- 
ation of Watkin's Point, upon which depended the true loca- 
tion of the boundary line between the Eastern shores of Virgi- 
nia and Maryland. As early as 1661, a commission was issued 
by governor Philip Calvert, to Edmund Scarborough, John 
Elzey and Randall Rouell or Revell, which empowered them 
to make settlements on the southern parts of the Eastern Shore, 
and to grant lands on very favourable terms, to emigrants from 
the counties of Northampton and Accomack. Their offers to 
the emigrants appear to have been gladly accepted, inasmuch 
as the report of Rouell to the governor and council of Mary- 
land, in the May following, informs us that at that early period 
after the commission, settlements had been made at Manokin 
and Annamessex, which then consisted of fifty titheahles, and 
that the settlers had formed a treaty of amity with the empe- 
ror of Nantkpke. (96) The establishment of then settlements 
on the very borden of Virginia, and the inducement! which 
they held forth to n- inhabitants, naturally excited the jealous} 
off its government. Hence, about this period, their submission 

(36) Council Chamber Records, Lib. H. H. 123, HT. Tart II. 38, 39, 40, 
I Q and 1 CI . 



20 THE GRANT AND TERRITORIAL LIMITS [Intro, 

to the authority of Virginia was required by colonel Scarbo- 
rough, for and on behalf of that government, and upon the re- 
fusal of Elzey, one of the commanders of these settlements, he 
was arrested at Accomack, by Scarborough, and released only 
upon a promise of submission, of an equivocal nature. (27) 
Scarborough's design was merely to terrify him into submission, 
and therefore, after exacting this equivocal promise, he avowed 
his determination to go up to the settlements for the purpose of 
exacting the same obedience of all, and declared he would put 
"the broad arrow mark," upon the houses of all such as should 
refuse. Pursuing these intentions, he entered these infant set- 
tlements in a hostile manner, when, partly by persuasion and 
partly by force, he succeeded in bending the settlers to a paitial 
compliance with his will, and to a temporary submission. In 
the mean while, the governor of Maryland had been apprised 
by Elzey of all these violent proceedings on the part of Scarbo- 
rough; and had been importuned by him, to aid the settlers in 
repelling these hostile incursions, and in repressing the inso- 
lence of the surrounding savages: but the former preferring a 
resort to pacific measures, contented himself with apprising 
Berkeley, the governor of Virginia, of all these unwarrantable 
acts on the part of Scarborough, done avowedly under the 
authority of the latter. (28) 

Final adjustment These acts of unprovoked hostility on the part 
Point, and the of Scarborough, were at once disclaimed by Berke- 
the ocean. ley as wholly unauthorised : and as the best mode 

of obviating all future difficulties, the governor of Maryland set 
on foot a negotiation with Berkeley for the purpose of effecting 
a final adjustment of the boundary line, between the respective 
possessions of the two governments on the eastern aide of the 
bay. The entreaties and remonstrances of the former were at 
last crowned with success, and commissioners were appointed, 
viz: Philip Calvert, on the part of Maryland, and on the part of 
Virginia its surveyor-general, Edmond Scarborough, who were 
empowered to determine the location of Watkin's Point, and to 
mark the boundary line between the two colonies running thence to 
the ocean. By them this duty was fully discharged on the 25th 
June, 1668, and in consummation of it, certain articles of agree- 

(27) Same pages, 170, 171 and 172. 

(28) Council Chamber Records, Lib. H. H. 170 and 207. 



Chap. I.] OF THE STATE OF MARYLAND. 21 

ment were drawn up and signed by each of them, on behalf of 
.their respeetive governments, in one of which they designate 

«' The point of land made by the \orlh side of Pocomoke Bay, and 
the South side of Annamessex Bay, as WatHns Point," and the 
divisional line between the two colonies, to be " An East line, 
run icith the extremest part of the Westernmost angle of said Wat- 
kin's Point over Pocomoke river, and thence T>vtr Swansecute's 
creek into the mdrsh of the sea side, with apparent marks and boun- 
daries." (-29) 

Thus ceased all the existing sources of controversy with the 
government of Virginia, about the validity or true location of the 
charter of Maryland: but not with them all the contests for the 
territory of the province. The proprietary seemed to be doomed 
to wage an eternal war for his grant: and controversy after con- 
troversy crowded upon him as the ghosts upon the sleeping 
Richard. He had now adjusted with Virginia the only points 
of difference which were likely to arise for many years, as to the 
location of his southern boundary, and even before these were 
adjusted, it became necessary for him to direct his attention to 
the preservation of his territory, on the northern and eastern 
borders of the province. In the unauthorised settlements m 
that direction which now required his attention, (although long 
anterior to the grant of Pennsylvania to Penn,) will be found 
the germ of all his dissentions with Penn, and one of the most 
efficient causes in producing the success of the latter. Unimpor- 
tant as they were in their origin, they planted the seeds of a 
controversy", u Inch was to agitate the province for nearly a cen- 
tury and winch finally terminated in depriving Maryland, in de- 
fiance of every thing like justice, of st>me of the fairest and 
most fertile portions of her original territory. As the source of 
such results, the consideration of them forms an important part 
of her history, and is necessary here *to elucidate the disputes 
with Penn about the northern and eastern boundaries. 

li has alreadv been remarked that the northern 
BwedMi nml c • 

Oaten -'"'■ boundary of Maryland, was at the time ol its grant, 
menu aftng tbe - . .. ,, , i . i ,,, ,•,... 

n^.wan, )hi . anthem boundary oi Now England: otf &9m 
the remoteness of the New England settlements, do disputes as 

(29) Sec the report of these eoamittionen, and the several agreements 
connected with this negotiation, in Council Chamber Records, Liber C.B. 

Council Proceedings, C3 and 64. 



22 THE GRANT AND TERRITORIAL LIMITS [Intro, 

to territory ever arose between them. The settlements to which 
we have above alluded, were the settlements made by the Swedes 
and Dutch along the Delaware or South river. It docs not 
clearly appear at what time these settlements were commenced, 
nor is it a matter of much moment at this day. Chalmers, who 
had paid some attention to this subject, expresses the opinion, 
that they had made no permanent settlements any where along 
the Delaware river, before the year 1632, but that they might 
have traded to it before that period. Proud, on the other hand, 
asserts, that a fort was erected on the Delaware by emigrants 
from the Dutch or Manhattan's settlement, as early as the year 
1623, which was, however, shortly afterwards abandoned. (30) 
Be this as it may, it is quite certain that if prior discovery gave 
title, (as was generally acknowledged by the European sove- 
reigns,) or even prior settlements, the claims of the Dutch not 
only to the territory along the Delaware, but even to their Man- 
hattan settlements, were wholly unfounded. The first voyage of 
discovery under which they could lay claim to any part of the 
continent, was made by Hudson in the year 1608 or 1609, 
and his voyage was not made for the purposes of settlement, but 
was merely one of exploration". Long ere this, the continent of 
North America had been explored by English navigators, and 
at that time, it will be remembered, that king James's grant to 
the Virginia Company, of the very countries explored by Hud- 
son, had been made, and the settlements of the Southern or 
London Company had already commenced. After Hudson's 
voyage, the Dutch continued to trade to Manhattan, and at 
length, in 1620 and 1621, the Dutch West India Company, which 
had just been created, established trading houses in the Island 
of Manhattan's, which laid the foundation of the present city of 
New York. (31) A colony soon followed, and a regular govern- 
ment was established. Under the direction and protection of 
the government of New Netherlands, as the Manhattan settle- 
ment was styled, the colonies to which we have above alluded, 
were planted along the Delaware; and about the same time, or 
very shortly afterwards, the Swedes established a trading house 

(30) 1st Proud, 110. 

(31) Chalmers, 5G8. 



Chap. I.] OF THE STATE OF MARYLAND. 23 

on the eastern bank of Delaware. (32) This establishment 
gave umbrage to the governor of Netherlands, who asserted the 
exclusive right of the Dutch, to the country along the Delaware 
or South river, and at length, in 1638, he formally demanded the 
submission of the Swedes to his authority, but without success. 
From this period each continued to assert their respective 
claims, but without any actual hostilities of a serious nature, 
until 1651, when a trading house and fortification attached to it, 
which had been erected by the Dutch near the site of the pre- 
sent town of New Castle, were seized by the Swedes under the 
command of Resingh, who bestowed upon them the name of Fort 
Casimer, and shortly afterwards erected another fort called Fort 
Christiana, about five miles above. Provoked by these hostili- 
ties, the Dutch West India Company dispatched an armament 
for the reduction of the Swedish settlements on the Delaware, 
which was at length finally accomplished in 1655, when the 
Swedish colonists became the subjects of the States' General, 
and submitted to the government of New Netherlands. (33) 

During all this period, but little attention was paid by the pro- 
prietary or his officers, to the progress of these settlements, which 
were yet too inconsiderable and too remote to excite any appre- 
hensions, and of the advance of which, it is probable that for a 
long time they were scarcely aware. (34) At length in January, 
Prometary'g <* 1659, Colonel Nathaniel Utye was ordered by the 
££ i ftaTkS g ov e™or and council of Maryland, " to repair to 
territory. tne p re t e nded governor of a people seated in Dela- 

(32) These Dutch and Swedish settlements are said to have commenced 
about the year 1628 or 1029. See the interesting note to 1st Proud 111. 

(33) Chalmers, 630 to 634. 1st Proud, 118 and 19. 2d Anderson's Histo- 
rical Deduction, 574. 

(34) It appears that a small band of emigrants from Maryland, had made 
settlements' along the margin of the Schuylkill as early as 1 642, of which they 
were dispossessed by the orders of the governor of New Netherlands, (Chal- 
mers, 632.) The existing records of the province of Maryland, furnish no evi- 
dence that this act of aggression was ever brought under the consideration 
of its government. This maybe owing to the loss of the records during In- 
gle's r* hellion : butapaii fr< >m this, if the settlement mi eren planted ruder 
the authority of the proprietary, the distraction! of the province, and the fre- 
quent revolutions in its government consequent upon that rebellion, the revo- 
lutions in the mother country, and tin- proceeding! of Cromwell's commis- 
sioners within the province, arc amply sufficient to account for the propnetu- 
rj's acquiescence 



24 THE GRANT AND TERRITORIAL LIMITS [Intro. 

ware Bay, and to inform them that they were seated within his 
lordship's province without notice." The insiduous instruction 
was also given him, "that if he find opportunity he shall insinu- 
ate to them, that if they will make application to his lordship's 
government, they shall find good terms according to his conditions 
of plantation." He bore a letter from the governor of Maryland 
addressed to the governor of New Amsterdam, (as the settlement 
was called) which commanded him and his subjects to depart the 
limits of the province. (35) Submission to this order was refused, 
and near the close of that year, Peter Stuyvesant the then gover- 
nor of New Netherlands, despatched Augustine Herman and 
Resolved Waldron on an embassy to the governor of Maryland, 
bearing with them a manifesto in which a full exposition is given 
of the pretensions of the States' General to the territory in ques- 
tion. In this manifesto they allege a grant from Spain to the 
States' General of all their conepjests and settlements in America, 
(of which they say that Curacoa, Brazils and the New Nether- 
lands made a part,) and a grant from the States' General to the 
Dutch West India Company, of all the territory from latitude 38 
to 42, as the basis of their title which they hold to have been con- 
firmed, even if doubtful by the treaty of 1652, and their purchases 
from the Indians. They also assert their previous possession 
and settlement of the country adjacent to the Delaware, and utter- 
ly deny the title of the proprietary: but at the same time profess 
their willingness to appoint commissioners to adjust certain of 
their boundaries, leaving their water limits on the Chesapeake 
4 Bay undefined. (36) In reply to this manifesto, the governor and 
council informed these ambassadors, that the title set up by them 
might be easily disproved, and that even admitting it, they did not 
believe that their settlements were sanctioned by the States' Gen- 
eral ; and the submission of the settlements in question was for- 
mally demanded of them. This demand was promptly rejected, 
and thus terminated the negotiation. (37) In May, 1661, the sub- 
ject was again brought before the council of Maryland, when it 
was resolved, that as it was a matter of doubt whether New Am- 

(35) Council Chamber Records, Liber H. H. Council Proceedings from 
1656 to 1668. 

(36) This singular manifesto is recorded at large amongst the Council 
Proceedings of Maryland, Liber H. H. 38 to 54. 

(37) Liber II. H. 57, 58 and 59. 



Chap. I.] OF THE STATE OF MARYLAND. 25 

Bterdam, lay below the 40th degree of N. latitude, and as the West 
India Company appeared to have resolved to maintain their pos- 
sessions by force, and there was no prospect of any aid from the 
other colonics, in any attempts which they might make to reduce 
»t»«*m, all further efforts for their subjugation should be delayed 
.util the will of the proprietary could be ascertained, and that in 
the meantime some efforts should be made to determine whether 
the settlement was located within the limits of the grant. (38) 
An agent was now dispatched to Holland, to enforce upon the 
West India company the claims of the proprietary to the territo- 
ry in question, and to repeat the demand that it should be aban- 
doned. Compliance with this demand was again refused, but 
orders were given by that company to its settlers, to withdraw 
from the territory about Cape Henlopen which they had pur- 
chased of the Indians. This was accordingly done, but New 
Amsterdam or New Castle, and the adjacent country, were still 
retained in possession. (39) 

In the meantime the government of New Netherlands was 

continually laboring to extend its settlements to the north of 

Manhattan's and across to Connecticut river, until Charles 

, II. provoked by its continued encroachments, and 

Reduction of 

uiem by the perhaps animated by that ill will which he is 

Duke of York. r r J 

said to have always cherished towards the Dutch, 
determined to effect the conquest of the whole settlement. To 
accomplish this, in March, *1664, he granted to his brother 
James, Duke of York,*all that tract of country extending from 
the west banks of the Connecticut to the Eastern shore of Del- 
aware, (including Long Island,) and conferred upon him the 
power to govern the same. To render this grant available, an 
armament was immediately dispatched by James, under the con- 
duct of Colonel Nicholls, for the reduction of New Netherlands. 
This was accomplished in September, 16G4, and in the ensuing 
month, the settlements upon the Delaware, which were depen- 
dencies of the government of New Netherlands, were surren- 
dered to a detachment from Nicholls's forces, under the com- 
mand of Sir Robert Car. By the terms of the capitulation, the 
Dutch colonists were admitted to all the privileges of English 

(38) Council Proceeding*, Liber II H. 113. 

(39) Chalmen, 631. 

4 



26 THE GRANT AND TERRITORIAL LIMITS [Intro. 

subjects under the new government, and from this period until 
the grant to Penn from the Duke of York, these settlements 
were the dependencies of the government of New York, 
although clearly within the limits of Maryland. (40) They, how- 
ever, embraced only a small portion of territory lying along the 
Delaware river. 

Grant of Tenn- The grant of the Province of New York to the 
syivama. Duke of York had just been made, and a portion of 

the granted territory was yet in possession of the Dutch, when 
in June, 1664, he carved out of it the province of New Jersey, 
which was by him granted to the lords Berkeley and Carteret. 
The grant of the province of New Jersey, is here mentioned, 
because it first introduces to our notice the celebrated William 
Penn, the proprietary of Pennsylvania, who very shortly after 
the erection of the former iprovince, became one of its proprie- 
tors. His connexion with it appears to have inspired hiin with 
the design of obtaining from the crown, a grant, as sole proprie- 
tor of the territory westward of the Delaware river. His interest 
in the New Jersey grant led to the discovery of the fertility of the 
lands lying westward of the Delaware, and his entangling con- 
nexion with many other persons in the ownership and conduct 
of the province of New Jersey, made him most earnestly desire 
a separate and sole grant. Hence in 1680, he petitioned king 
Charles II. for a grant of lands westward of the Delaware, 
and north of Maryland. His petition was submitted to the 
Duke of York's secretary, and" to Lord Baltimore's agents, 
that it might be known how it would affect the respective rights 
of these proprietaries. In the reply of the latter, they desired 
for the protection of Baltimore's grant, that the grant to Penn, 
if made, should be north of the Susquehanna Fort, and of all 
the lands lying south of a direct line, running east and west 
from said Fort ; that it should contain general words of restric- 
tion', as to any interest granted to Lord Baltimore, and a saving 
of all his rights, and that his council might be permitted to see 
the grant before it was passed. This was assented to, and the 
grant was finally made, on the 4th of March, 1681. (41) Its 

(40") See the articles of capitulation in 1st Proud, 123. 
(4\) Chalmers, 656. In the reply of Weiden, the Duke of York's secre- 
tary, to the requests of Baltimore's agents, he remarks, " that by all which he 



Chap. I.] OF THE STATE OF MARYLAND. 27 

boundaries which are said to have been settled by Lord Chief 
Justice North, were, "the Delaware on the east, whence it ex- 
tended westward five degrees of longitude, the 43d degree of 
latitude on the north, and on the south, a circle of twelve miles 
drawn around New Castle, to the beginning of the 40th degree 
of latitude." This definition of its southern boundary, which, 
in its literal construction could not be 'gratified, and which, 
therefore, left open the question, whether this boundary circle 
was to be a circle of twelve miles in circumference, or to be 
drawn around a diameter of twelve miles passing through New 
Castle, or with a radius of twelve miles* beginning in New 
Castle, was the origin of one of the present boundary lines of 
this State, and was one of the principal sources of the conten- 
tion between Baltimore and Penn. (48) 

Such being the grant, in May, 16S1, Markham, 

Penn'3 prant ... -„ ,. liiii 

from the Duke the kinsman of Penn, was dispatched by the lat- 

of York, and _ . 

hi? negotiation ter to take possession of the granted province, 

bearing with him the king's letter of April, 1(581, 
apprising Baltimore of the grant, and requiring the two proprie- 
taries to adjust the boundaries between their respective provin- 
ces, according to the calls of their charters. Upon the recep- 
tion of this letter by Lord Baltimore, (who was then in the pro- 
vince,) an interview took place between him and Markham, 
shortly after the arrival of the latter, at Upland, (now called 
Chester,) which, to the astonishment of all parties, resulted in 
the discovery from actual observation, that Upland itself was 
at least twelve miles south of the 40th degree, and that the 
boundaries of Maryland would extend to the Schuylkill. (43)- 
This discovery at once ended the conference, and gave fresh 
incentives to Penn in his efforts to obtain from the Duke of 

can observe of the boundaries mentioned in Mr. Penn's petition, they agree 
well enough with that colony which hath been ever since the conquest of 
New York by col inel NiohoIIa, held as'an appendix, and part of the govern- 
ment of New York by Che Dame of the Delaware Colony, or more particu- 
lar! lony, (that being the name of the principal place in it, 
and the whole being promucoously planted by Swedes, Dutch, Fifilanders 
ami English,) all of which have hitherto been under the actual government 
of His Royal H nant at New York." 

[si Proud, 170. 

Chalmers, I 



28 THE GRANT AND TERRITORIAL LIMITS [Intro. 

York, a grant of the Delaware settlements, inasmuch as without 
such grant, he had now reason to fear the loss of the whole 
peninsula. His earnest desires were at length gratified by the 
Duke, who conveyed to him in August, 1682, the town of New 
Castle, with all the territory for twelve miles around it, and 
also the territory extending southward from it, even to Cape 
Henlopen, and at the same time released to him all claims 
which he might have to the territory, included in the grant 
of Pennsylvania. (44) It is unnecessary here to remark upon 
this conduct of the one, in granting that to which he had no 
title, and of the other, in seeking for and accepting such a 
grant, with a full knowledge of its invalidity, for the single pur- 
pose of enabling himself to encroach upon Baltimore's territory 
under colour of right. The judgment of history has already 
been passed upon it, and we, of this day, who listen to nothing 
but the plaudits of Penn, may learn from a contrast of these, 
not only with his conduct on this occasion, but throughout his 
proprietary transactions with Baltimore, — "how effectually success 
will often gild usurpation and sanctify wrong." Penn was now 
doubly armed; and fortified by this grant and release, his original 
grant and a letter from Charles II. directing the proprietary of 
Maryland to assent to a speedy adjustment of his northern 
boundaries, and in that adjustment to determine them by mea- 
suring from his southern boundary two degrees to the north, 
reckoning sixty miles to the degree, he speedily repaired in per- 
son to his province, and sought an interview with Lord Balti- 
more. He was now as eager to adjust his boundaries under these 
new circumstances, and in conformity to the king's letter, as he 
was formerly anxious to evade their adjustment after the disco- 
very at Upland. His wishes for an interview were gratified, and 
it accordingly took place between him and Lord Baltimore, with- 
in the province of Maryland, in December, 1682: when the letter 
of king Charles was submitted to the latter, and his compliance 
with it requested. Baltimore received it with respect, but remark- 
ed with reference to the mode of adjusting his boundaries pre- 
scribed by it, " That his majesty's directions were surely the re- 
sult of misinformation, as his (Baltimore's) patent granted no spe- 
cific number of degrees, but merely called for the 40th degree of 

(44) 1st Proud, 200. 



Chap. L] OP THE STATE OF MARYLAND. 29 

north latitude as its northern limit, and thai such being the 
tiahi wanted by his patent, no royal mandate could deprive him 
of that right," Obedience to it being thus respectfully declined, 
Pent, professed his willingness to waive .Ins mode of adjustment, 
and to admit the 40th degree as the boundary, provided il were as- 
certained not by actual observation, but by mensuration from the 
Capes of Virginia, the latitude of winch had already been ascer- 
tained. This proposition was also declined, and thus ended a 
fruitless conference of three days. In May, L688, another meet- 
ing took place at New Castle, winch was followed by the same 
result, and which put an end to all hopes of an amicable termina- 
tion of their controversy. Accounts of those negotiations were 
transmitted by each party to the commissioners of trade and plan- 
tations: and in these, as is usual in such cases, each party ^ attri- 
buted to the other the whole failure of the negotiations. In the 
representations of these, made by Penn, he discloses to us the 
causes of his extreme anxiety to avoid an adjustment ; according 
to the strict letter of Baltimore's patent. "I told him (says Penn 
to detaUing his negotiations) that it was not the love or need ol 

land, hut the water; that he abounded in what I wanted, and had 
access to it, and has carriage even to excess, and because there ,s 
no proportion in the concern, for if I were a hundred tunes more 
ur ,ent and tenacious, the case would excuse it because the 
fttog insisted on, was ninety-nine times more va ua ble to me 
flianlohim ._,ohunthehead,tomethetad. [ added, thaifit 
were Ins planting, il would recompense the favour not only by 
laying his country between two thriving provinces; but the ships 

that vearly come to Maryland, would have the bringing ur 

people and merchandise, because they can afford it cheaper, 
whereby Maryland would for an age or two become the mart ol 
trade" (40 We of this' day, cannot butbe amused with these 

delusive pros] ts of gain, held forth by Penn to Baltimore, as 

„ i ndu cement for the surrender of his territory, *nd at their sin- 
„lar inconsistency with his avowed purpose in desiring the sur- 

rende* He tempts Lo*d Baltimore with the hope that his c - 

ni8t8 wUl be the carrieti of the trade of Pennsylvania for an age 

or two, and atthew time desires the surrender of the lands 

(4.-,) Sec Pmn> accouniof these negotiations, "' Chain 66. Ut 

Proud 267 to ^7 t. ,• 



30 THE GRANT AND TERRITORIAL LIMITS [Intro. 

along the Delaware, that lie may secure to himself the navigation 
of that river, and a direct water-outlet for the trade of his province. 
When we witness his extreme anxiety to secure this in all his 
intercourse with Lord Baltimore, we almost imagine that his pro- 
phetic spirit had looked into futurity, and saw the day not far dis- 
tant, when "the genius of the empire would westward icing herway;" 
and by the aid of the advantages which he sought, the howling 
wilderness would he metamorphosed into the cultivated, popu- 
lous and smiling land, luxuriating in peace and plenty, and there 
would startup as if by magic, one of the chief commercial empo- 
riums of the tirst republic of the world. 

In these representations we find him preparing to 

Objections urecd . 

against. tbe cbar- assail Lord .Baltimore with new objections. He 
ter of Maryland. . , 

had relied in the first instance upon his grant of 

Pennsylvania; but the observation at Upland had satisfied him 
that this would not avail him. He threw himself next upon the 
grant from the Duke of York and the king's letter; but in the face 
of all these, he found Baltimore resting firmly, and with confi- 
dence upon the imperative terms of his charter. To shake this 
confidence it now became necessary to assail that charter : and 
hence in these representations we find Penn objecting to it be- 
cause the Delaware settlements had been purchased and planted 
by the Dutch before that charter was granted ; and that even if 
Baltimore had acquired a right to them under the patent, he had 
forfeited it by suffering others than his colonists to retain posses- 
sion of them for forty years. This objection, which will be found 
to have governed the decision of the commissioners of trade and 
plantations in 1685, and to have ultimately deprived Baltimore of 
that portion of the peninsula which now forms the State of Dela- 
ware, did Viot originate with Penn. It will be found amongst the 
objections urged against the charter, and in support of the claims 
of Virginia, whilst the government of Maryland was in the hands 
of the protector's commissioners ; and it was strenuously urged 
by the Dutch ambassadors in 1659, in the vindication of their 
title to the territory along the Delaware ; in which they object to 
the efficacy of the patent, because it granted only such lands as 
were uncultivated and uninhabited. (46) In the close of his re- 

(46.) Hazard's Collections, Vol. 1st. 594 to 680. Council Proceedings of 
Maryland, Liber II. II. 48 to 54. 



Chap. I.] OF THE STATE OF MARYLAND. gjj 

presentations to the board, Pcnn requested, " that the boundaries 
of Maryland might be determined by the judgment of ancient 
times: and that Baltimore might be required to measure his two 
rs at sixty miles the degree, and that the fortieth degree 
mi<»ht be ascertained by m -asurement at that rate from Watkin's 
Point:" which he tiroes by the emphatic remark, "that a province 
lay at stake in tl*e success of his request." From this period he 
denied the validity of the grant as to the eastern side of the pe- 
ninsula : and in 16^4 he repaired in person to England to urge 
an application for a new grant, including the disputed territory. 
Baltimore'.* ef- Throughout this controversy, and hfdeed from the 

t' irlS i" 111 ll I -ii r T\ 

tiemenis on the moment of tne withdrawal of the Dutch beyond 

disputed territo- , T . 

ry. Cape Henlopcn, and the subjection of the settlements 

along the Delaware river to the government of New York, the 
proprietary and his officers incessantly labored to extend the 
Maryland settlements to Cape Henlopen, and thence north to and 
along the Delaware. *' The council proceedings of this period 
abound with injunctions to this effect, emanating both from the 
proprietary and from his governors, and with propositions to set- 
tlers of a most inviting character. (47) Had these been attended 
with the desired results, and had the proprietary succeeded in 
planting numerous and thriving settlements along the Delaware 
before these objections to the patent were started by Penn, it is 
probable that Ms' possessions would not have been disturbed. 
He did not, however, succeed in effecting this, before the grant to 
Penn from the Duke of York, of the Delaware settlements : and 
from that period Penn's strenuous opposition to the extension of 
his settlements, deterred many from accepting of the proffered 
terms. 

After the failure of these efforts at an amicable adjustment in 
the interviews above alluded to, and before the departure of Penn 
to England, to urge his application for the <jrant along the Dela- 
ware, Baltimore, in September, 1688, through Colonel George Tal- 
Adjudicntinn of DO, > formally demanded the surrender of all the lands 

tradc« b Bnd plan- '. v ' n n on the W6S1 »ide Of 1 h ■!:: wa re liver, and SOUth 

J of the 40th degree of latitude, according to a line 
run due east and west from two observations, the one made on 

(47) See Council Proceeding!, Liber C B. pages 7, 23, 24, 25, 4H, 100. Lib. 
R. R 122 and 2d part do. 62 and 76. 



32 THE GRANT AND TERRITORIAL LIMITS [Iutro. 

the 16th of June, 1632, and the other on the 22d of Septem- 
ber afterwards. This demand was resisted by Penn in a reply 
of great length, in which, after setting forth many objections 
to the manner and circumstances of the demand, he urges 
as a bar to it, the previous possession of the Dutch, Lord 
Baltimore's neglect to conquer them, and his (Penn's) grant 
from the Duke of York. (48) It was, perhaps, owing to this de- 
mand, that Penn was induced to repair to England in person to 
press his application for a new grant. It taught him that Balti- 
more was not disposed to sleep upon his rights, nor to permit 
him to engross his territory by gradual and silent encroachments : 
and he now perceived the necessity of an instant and vigorous 
opposition to Baltimore's claims under his charter. No course 
was left open but to attack the charter, and the best mode of ef- 
fecting this, was by seeking a new grant for the territory alleged 
to be unaffected by it, whilst Baltimore was resting with confi- 
dence upon it, and not even expressing a desire for its confirma- 
tion. Penn's application was judicious in its nature, and well 
timed as to the circumstances under which it was preferred. The 
proprietary was, at that very period, under the displeasure of the 
crown, in consequence of certain differences between him and 
the collectors of the royal customs: and had but little to hope 
from its favor. The application had been preferred by Penn be- 
fore his return to England: and notwithstanding the strenuous 
and unremitting opposition of the proprietary, its consideration 
had been referred by the king, to the commissioners of trade 
and plantations, in May, 1683, and Penn's visit was intended to 

, produce a favorable and speedy adjudication. He was success- 
ful; for in November, 1685, that board decided that Lord Balti- 
more's grant included only " lands uncultivated and inhabited by 
savages, and that the territory along the Delaware, had been set- 

j tied by christians antecedently to his grant, and was therefore 
not included within it," and they directed that to avoid all future 

i contests, the peninsula between the two bays should be divided 

\ into two equal parts by a line drawn from the latitude of Cape 
Henlopen, to the 40th degree of north latitude, and that the 
western portion belonged to Baltimore, and the eastern to his 

(48) 1st Proud, 276 to 283. 



Chap. L] OF THE STATE OF MARYLAND. 33 

majesty and by consequence to Penn, to the confirmation of 
whose grant from king James this decision enured. (49) \J 

At i ho period of this adjudication the exigencies of Baltimore's 
situation were such as to require, if not his prompt compliance 
Fiate of the ton. u ' ,n > ul ' l -' a - st n ' s silent submission to its mandates. 
oXr^fSeesJS 1It! waa Q0W menaced with the total loss of bis 
grant, against which a quo warranto had already 
been issued ; arjd resistance to the will of that monarch would 
only have served to hasten and ensure that loss. It was a dark 
period in the judicial history of England, when no chartered right 
was safe, if the king willed it otherwise : and those who would 
escape the storm, found it necessary to bend before the blast. 
But an aara in the affairs of the mother country was now at hand, 
which with the revolutions it brought in its train, was destined 
for a time to overwhelm all these minor controversies. It came 
in time to save tin 1 charter of Maryland, and to suspend the exe- 
cution of the adjudication of 1G85 : and it was followed by a series 
of revolutions in the condition of the two proprietaries, and the 
state of their respective provinces, under which the question of 
boundary from that period until the agreement of the 10th May, 
1732, hereafter mentioned, was left to rest upon the unexecuted 
adjudication of IG^o, and the state of facts in which that decision 
found the controversy. The causes of its suspension for nearly 
half a century, will be found in the condition of the mother coun- 
try, and the provinces throughout that interval. /The earnestness 
with which Penn had soughl this adjudication, assures us that 
the actual location of their boundaries in conformity to it, would 
have been pressed upon Baltimore with the same eagerness and 
success with which the decision itself had been sought. James, 
his friend, his patron, and the author of his grant, was on tho 
throne, and the charter of Maryland was already at the mercy of 
the crown. Bui for that monarch the day of retribution had at 
last arrived. The measure of his iniquities was full. He who 
had so long trampled upon the rights of others, was now to know 
and respect the rights and feel the indignation of an insulted 
people. He was expelled the throne, and the government of 
England was committed to William of Orange, by whom but little 

(4Dj Council Proceedings, liber X. 53 to 63. 

6 



34 THE GRANT AND TERRITORIAL LIMITS [Intro. 

respect was paid to the unjust, arbitrary and partial decisions of 
his predecessor. The anti-catholic feeling which was generated 
by the occurrences that preceded and attended the revolution, 
which seated William on the throne, soon extended itself to the 
province of Maryland, and became the rallying point for all the 
mal-contents of the province who wished to shake off the rule of 
the proprietary. The spirit of ambition and misrule always mask 
themselves behind some plausible pretext of public good, or some 
seeming earnestness for the general welfare : and in that age the 
cry of "No Popery," was the watchword in the mouths of many 
whose services to the holy Protestant church had never extended 
beyond lip-service, and whose whole lives had been an illustration 
of practical infidelity. In these considerations we find enough to 
account for the existence of the Protestant association, which was 
formed within the province at this period by John Coode*and 
others, for the avowed purpose of shaking off the proprietary gov- 
ernment. The proprietary was indeed a catholic : but whatever his 
religious feelings or his political inclinations, the records of that 
day furnish us with no evidence of his attempts to propagate 
them by the persecution of his subjects : and when we contrast 
his gentle sway with that of those who were the leaders in this 
association, we are ready to exclaim "Oh religion, how many 
sins are committed in thy name." The association was success- 
ful, and in the year 1G89, the government of the province passed 
from the proprietary into the hands of the leaders of this associa- 
tion ; and being shortly afterwards in 1690-91 taken from these 
self-constituted rulers, it became and remained a royal govern- 
ment until 171(5. During all this period, it was, as other royal 
colonial governments, administered under the crown, and the 
proprietary, stript of his powers of government, was the mere 
proprietor of the soil and of the rights incident to its ownership. 
It would therefore have been useless and unwise on the part of 
Penn, whatever his situation, to have pressed upon the English 
crown, an adjudication founded upon his personal favour with the 
expelled monarch, and contracting the boundaries of a province 
which had fallen directly under the royal rule. To these consid- 
erations were added others flowing from the peculiar relation in 
which Penn stood with reference to the old and new governments. 
With James he had been a favourite: and his favour with that 






Chap. I.] OF THE STATE OF MARYLAND. 35 

monarch, and his tardy movements in support of the revolution, 
induced those who were prominent in it. to rank him amongst the 
disaffected. Hence he was twice or thrice summoned before the, 
privy council, and held to hail upon the charge of defection from 
the newly established government: and at length in 1692, he was 
deprived of the government of Pennsylvania and its territories, 
which was then assumed by the crown. (50) In August, L694. he 
wa- restored to his government, hut not tO such favour with the 
king as allayed all his liars as to his old possessions: and these 
fears were revived in their full force by an efi'ort made in the 
English Parliament, in the year 1701, to convert his and the other 
proprietary governments into royal governments. (51) His re- 
turn to England and the death of king William, relieved him 
from this new danger; and the elevation of Anne to the English 
throne, again brought him into favour at court, v This interval of 
royal protection he did not fail to improve : for we arc informed 
that he twice petitioned Anne for a further hearing upon the 
subject of these boundaries; and that his wisli being accorded, the 
order of His") was reconsidered, ratified and ordered to be in- 
stantly carried into execution. (52) And now that Penn had 
again attained to the summit of his wishes, his situation had 
again become such, as to debar him from the full benefits of the 
decision. The establi>hmeul of his colony had involved him in 
pecuniary difficulties, from which he could extricate himself only 
by a mortgage of his province. The discontents of his colonists 
added much to the difficulties of the moment: and disease had 
stripped him of much of that energy which was necessary for 
the exigencies of his condition. Weary of these embarrass- 
ment-, and Binking under the difficulties of his situation, he at 
length in IT 1 *- , contracted with queen Anne for the sale of his 
provinces. An attack of the apoplexy at the moment of the 
consummation of tin- contract, disabled him from making a valid 
surrender of hi- province : and in the state of mental imbecility 
which thi he lingered until his death in 1718. The cir- 

cumstances which prevented thi- surrender after his death, it is 
unnecessary to detail, and it will suffice to say that the govcrn- 

(50) 1st Proud, 347 and 377. 
C51) 1st Proud, 403. 
(88) 1st Proud, 294. 



36 THE GRANT AND TERRITORIAL LIMITS [Intro. 

inent of his province, was committed after his decease, and in 

conformity to his devise, to his three sons by his last marriage, 

John, Thomas and Richard Penn. 

During the long interval between the order of 1085, and the 

accession of these proprietaries, which was but a few years after 

the restoration of the proprietary government in Maryland, there 

were doubtless many border contests for the debateable territory; 

but, with reference to the actual state of the controversy between 

state of the con- these proprietaries, and the effects which they pro- 
troversy from , . 

nis, until the duced upon them, they are about as important and 

agreement of , _ ..." ,, y,i n- 

May, 1732. worthy ot consideration as were the wars oj the Pig- 

mies and the Storks. Both provinces being now in the undisturbed 
possession of their respective proprietaries, this interesting, and 
to both, important controversy, was revived in the very year 
after the accession of the younger Penns, by grants emanating 
from the government of the latter, and more especially of a tract 
of land or manor called Nottingham, as lying within the county 
of Chester, and within which the justices of Cecil undertook to 
exercise their jurisdiction, and to levy taxes. To adjust this 
difference, an interview took place between Hart, governor of 
Maryland, and Keith, governor of Pennsylvania, which resulted 
in a mutual agreement to preserve the good understanding be- 
tween the provinces until the difference could be adjusted. In 
March, 1722, this subject was again brought under tha,consider- 
ation of both governments, and again resulted in the same tem- 
porary agreement, and in a proposition for a future interview 
which does not appear to have been held. This controversy is 
principally worthy of notice, because of the new ground assumed 
by the disputants on the part of Pennsylvania. In a paper sub- 
mitted by the governor of Maryland to his council, which was 
entitled, "A plain view of all that has been talked of or done for 
twenty years past, as to the boundaries between Pennsylvania 
and Maryland." It is alleged that Baltimore himself had deter- 
mined the extent and boundary of his own grant, by an actual 
observation made in 1083, and by then running a line from a 
point at or near the mouth of Octorara creek in Cecil, due east 
to the Delaware: and that this line by which Baltimore himself 
had excluded all his pretentions to the territory north of the 
Octorara, and by consequence to the Nottingham grant, had ever 



Chap. I] OF THE STATE OF MARYLAND. 37 

since been regarded as the boundary line of the two provinces. 
It is also alleged that in 17(10. lYim having occasion to pass up 
the Chesapeake Bay, on a visit to the Susquehanna Indians, was 
accompanied by several citizens of Maryland as far as the mouth 
of Octorara Creek, where they excused themselves from further 
attendance upon him, by the observation, that they had now ac- 
companied him into Ins nun territory. Whence this "plain 
view'' came, and by what authority prepared or sanctioned, the 
Council Proceedings do not inform us: yet, although it does not 
purport to be an official paper, emanating from the government 
of Pennsylvania, , it seems, from the manner in which it was 
preferred to. and received by the council of Maryland, to have 
been regarded as having the sanction of the former government. 
Although this paper was respectfully received, its allegations, as 
to the establishment and universal reception of the boundary line 
from Octorara, were not admitted to be true, and the depositions 
of several persons were ordered to be taken, for the purpose of 
controverting several of its material statements. It is, indeed, 
quite probable, from the language of some of Baltimore's instruc- 
tion.-, that some attempt was made in 1683) to ascertain these 
boundaries by actual observation, and perhaps, even the termini 
ami course of the line were determined* Yet, besides the other 
objections set out by the council, it is obvious that, this survey 
being an exparte proceeding on the part of Baltimore, and not 
the result of a compact between him and Penn, nor obligatory 
upon the latter, could not conclude the former under any 
circumstances, and most clearly, not in a case of palpable 
mistake. (53) From the period of this controversy until .May, 
17.52, the good understanding between the two provinces was 
preserved by mere temporary expedients, which were every 
now- and then sel at nought by some act of border aggression and 
outrage-; until the subject of difference was closed as far as a 

(53) The history of tlii~. controversy, of the causes \\ hich led t<> it, and of the 
various proceedings in connexion with it, may be collected from t hr- Council 
I- edings, Liber v 59to 63,— 68 to 93, — 193 to 196. It was attended with 
considerable excitement, because the claimants under Pennsylvania grants 
had not only extended their sum \s into what were deemed the limits of Ma- 
ryland, but had also actually arrested Van Bibber, Chief Justice of Cecil, 
whilst engaged in a survey along the branches of Apoqucniinick Creek. 



38 THE GRANT AND TERRITORIAL LIMITS [Intro. 

mere agreement was effectual for that purpose, by the well known 
compact of 10th May, 1732, entered into between Lord Baltimore 
of the one part, and John, Richard and Thomas Penn, proprie- 
taries of Pennsylvania, of the other part. 

This agreement, so far as it relates to the definition of the 
boundaries, was a full concession of the claims of the latter. 
In determining the boundaries of their respective peninsular pos- 
Asreement of sessions, it provided that they should consist of a 
May iota, i/32, jj^g De gi nnnl g a t the easternmost part of Cape 

Henlopen, and running due west to the exact middle of the 
peninsula at that point, and of a line running from that middle 
point in a northerly direction so as to form a tangent to a circle 
drawn around New Castle, with a radius of twelve miles. And 
thus it gratified the grant of 1()82, from the Duke of York to 
Penn, the original proprietor, which, as has been seen, conveyed 
all the territory for twelve miles around New Castle, and thence 
southward to Cape Henlopen. In adjusting the northern boun- 
dary of Maryland, which was also the southern boundary of 
Pennsylvania, it determined that that boundary should begin, 
not at the 4()th degree of latitude, as called for by the charter of 
Maryland, but at a latitude fifteen English statute miles south of 
the most southerly part of Philadelphia; and that to connect this 
common boundary line with the boundary lines of their penin- 
sular possessions, it should begin upon the said tangent line, if 
it extended to that latitude, or if not, that then a line should be 
drawn due north from the point at which the tangent met the 
circle until it reached that latitude, and that the said boundary 
line between Maryland and Pennsylvania should then begin: 
and that beginning in said latitude, either on said tangent line, 
or said north line, as the case might be, it should run due west 
to the western extremity of the two states. As incidental to 
this agreement, there were incorporated into it several stipula- 
tions with reference to the navigation of rivers, flowing through 
both provinces, and as to the interests of grantees or occupants 
of lands lying within the debateablc territory, which, for the pur- 
poses of the present enquiry, it is not material to notice. To 
carry it into effect, each of the contracting parties was required 
to appoint, within two months thereafter, not less than seven 
commissioners, under whose direction the survey of the boun- 



Chap. I.] OF THE STATE OF MARYLAND. 39 

daries was to be completed on or before the 25th of December, 
1733, and when completed, a plat of the survey, with an exact 
description of its courses and bounds, w;is to be signed both by 
the commissioners and the proprietaries, and entered on record 
in the public offices of the provinces. (54) In pursuance of this 
agreerhent, commissioners were appointed, between whom, at 
the very outset of the performance of their duties, differences 
arose as to the proper application of the terms of the agree- 
ment, and the manner of carrying it into execution, which at 
once put an end to this new effort at adjustment. 

The result of it was, however, such as to give Baltimore cause 
to tremble for the extent of his concessions in that agreement: 
and now, for the first time, he sought to relieve himself from all 
B.ittimnre'a ap- further controversy, by obtaining from King George 

plication w the ' J ° 

King in coun- II. a confirmation of the charter, nori obstante the 

cil, and result of 

"• words of description contained in it, which repre- 

sented it " as uncultitdted, and inhabited by savages." These 
unfortunate words, which the sagacity of Peini had turned to good 
purpose, in his objections to the chatter, as obtained by misrepre- 
sentation at least as to the peninsular territory, had been the 
source of his most serious difficulties, and they now suggested 
an expedient which it would have been well for the proprietary 
of Maryland to have adopted in the very origin of the controver- 
sy. To adopt this expedient, was indeed to admit the force of 
the objection, and hence the tardy resort to it; yet it is proba- 
ble, that if instead of relying with entire confidence upon the 
efficacy of the charter, the proprietary had, upon the first ap- 
pearance of this objection, petitioned for this confirmation, it 
would have been at once accorded by the justice of the crown, 
and thus in all future contests, his claims would have rested upon 
an unquestionable chartered right. Fortified by this right, what- 
ever might have been the result during the reign of James, the 
principles of political liberty and the respect for chartered rights, 
whi<h rose in triumph when he fell, must ultimately have restor- 
ed Baltimore to the full enjoymenl of his original grant. As it 
vras, the proprietaries ol Maryland had suffered difficult] to ac- 

(54) l""r a view <>f tMs agreement see the recitals of thi ;| of 

hereafter alluded to, and alio Bd Proud, 809, and Kilty's Landholder's 

Assistant, 170 and 171. 



40 THE GRANT AND TERRITORIAL LIMITS [Intro. 

cumulate upon difficulty, and objection to spring upon objection, 
until it was too late to retrace their steps. Had the confirmation 
been sought and obtained in the first instance, it would have been 
a preventive; but now it was applied for as a remedy, and only 
when all else had failed. The application thus made was strenu- 
i ously opposed by the proprietaries of Pennsylvania, who inter- 
l posed Baltimoie's voluntary agreement and surrender of territo- 
j ry as a bar to his application. The result was, that for the pur- 
i pose of testing the validity and conclusiveness of that agreement, 
by an order of the King in Council in 1735, the Penns were di- 
rected to institute proceedings in Chancery upon it, and the con- 
sideration of the petition was delayed to await the issue of those 
proceedings. The proceedings in Chancery were accordingly 
instituted in June, 1735, and the question of right involved in it, 
was thus suspended until the decree in 1750. (55) 
I During this interval, some excesses of a frightful nature were 
committed on the borders of Lancaster and Baltimore counties, 
state of the houn- The most prominent of these was, the attack upon 
SmeT 'of the house of Thomas Cresap, a citizen of Maryland, 
dlcree thereon hi which was made by a body of armed men from Penn- 
17d0 - sylvania, who are said to have set fire to the house 

in which were Cresap and his family and several of his neighbours, 
and to have attempted to murder them as they made their escape 
from the flames. (56) On the other hand it was alleged in 
recrimination by the government of Pennsylvania, that a body of 
armed men from Maryland, to the number of three hundred, had 
invaded the county of Lancaster in a warlike manner, and had 
resorted to the most violent measures during their incursions, to 
coerce submission to the government of Maryland. These 
border excesses, and the recent defection of many citizens of 
Baltimore county, who formally renounced their allegiance to the 
government of Maryland, were of so alarming a character, that 
the governor and council of Maryland, found it necessary to 
make a full representation of the facts, both to the proprietary 
and the King in Council. Their petition occasioned an order in 
council of August, 1737, by which the proprietaries were com- 
manded to put a stop to these excesses, and to use their utmost 

(55) Seethe recital of the agreement of 1760. 

(56) Council Proceedings, Liber M, A. D. 1735. 



Chap. I.] OF THE STATE OF MARYLAND. 41 

efforts to preserve peace between the two provinces: and as 
the best mode of accomplishing this, they were inhibited from 
making any grant of the disputed lands, and particularly in the 
three lower counties, and from suffering any peison to make 
settlements therein, until his majesty's pleasure, with reference 
to the territory in question, should be signified to them. (57) 
The situation of the two proprietaries at that moment, and 
their desire to conciliate the crown, induced a ready complianco 
with this order in council, to carry which into effect, an agree- 
ment was entered into between them in May, 1738, which pro- 
vided for the running of a provisional and temporary line between 
the provinces, which was not to interfere with the actual posses- 
sions of the settlers, but merely to suspend all grants of the 
disputed territory as defined by that line, until the final adjust- 
ment of the right. This agreement was approved of by the king, 
and ordered to be carried into execution, and, in pursuance of it, 
in 1739 the provisional line was actually run. (58) 
Decree upon tiie Upon the proceeding in Chancery, a decree was 

acn:emcnt of 

1*32. pronounced by chancellor Hardwicke, in May, 1750. 

It is not necessary to review the various objections, both to the 
jurisdiction of the court, and the ellicacy of the agreement, which 
were urged on behalf of Lord Baltimore. They are all summa- 
rily staled by the chancellor in his decision, as reported in 1st 
Vesey Sen'rs Reports, 111 to 456. It seems, however, to illus- 
trate the circumstances, under which the agreement of 1732 was 
entered into, and the agency of Baltimore in bringing it about. 
In tin- remarks of the chancellor upon the allegation of imposi- 
tion and fraud practiced upon Baltimore in the formation of that 
agreement, he says, • It would be unnecessary to enter into the 
particulars of that evidence: but it appears thai the agreement was 
originally proposed by the defendant himself; thai he himself pro- 
duced the map or plan afterwards annexed to the articles, — that 

he himself reduced tie' heads ofil into writing, and was very well 
assisted in making it: and further, that there was a great length of 

('<!) Council P I, Liber M, which contains all the. representations, 

proclamations and council transactions generally, in connexion with these 

bonier tumults. Ami also the above mentioned order iii Council of I8ti 
August, 1737. 

1 58) See Smith's Laws of P< an vlvania, 2d vol. 134. 
6 



42 THE GRANT AND TERRITORIAL LIMITS [Intro. 

time taken for consideration and reducing it to form." Under 
such a state of facts, the objection to its execution certainly came 
very ungraciously from Baltimore; and whatever his folly in 
forming it, it was but justice not to permit him to stultify himself. 
The objections to the jurisdiction being overruled, the decree, 
therefore, very equitably ordered the specific execution of the 
agreement : and to obviate the difficulties which had arisen jn 
the voluntary effort in 1733, to carry it into execution, the chan- 
cellor pronounced an opinion as to the true location of Cape 
Henlopen, and the manner in which the circle around New Cas- 
tle was to be described. As to the former he remarks, "that it 
is clear by the proof, that the true situation of Cape Henlopen 
is, as it is marked in the plan, and not where Cape Cornelius is, 
as is insisted upon by the defendant, which would leave out 
a great part of what was intended to be included in Penn's 
grant from the Duke of York : and there is, says he, strong evi- 
dence of seisin and possession by Penn, of that spot of Cape 
Henlopen, and of all acts of ownership." The circle around 
New Castle he held to be a circle described around it with a 
radius of twelve miles, radiating from the centre of the Town. 
(59) i| 

In conformity to this decree, commissioners were appointed 
by each of the parties to carry it into effect, and further diffi- 
culties soon arising as to the circle, the subject of difference was 
referred to the chancellor under a general power reserved by him 
in the decree, to adjust any difficulties which might arise in its 
Procefidin s of exec ution. It was contended by the Maryland com- 
e"s ' under'thfJ rte- rnissioners, that the radius should consist of twelve 
cree * miles of superficial measure: but it was decided by 

the chancellor, upon the reference, that these miles, as well as the 
fifteen miles intervening between the boundary and the city of 
Philadelphia, should be reckoned by horizontal measure. The 
commissioners had, in the meantime, proceeded to execute the 
other parts of the survey about which there was no invincible 

(59) I have before me a copy of the minutes of this decree, and also of 
the commission issued under it by the proprietaries of Pennsylvania, for 
which I am indebted to the kindness of Charles Smith, Esq. of Pennsylvania, 
whose learning and spirit of research are so conspicuous in his admirable 
edition of the laws of that State. 



Chap. I.] OF THE STATE OF MARYLAND. 43 

disagreement, ami before April, 1751, they had ascertained the, 
true location of Cape Henlopen, and had made an actual survey 
of the due west line, running thence across the peninsula. The 
true position of Cape Ilenlopen they determined to be a point 
situated one hundred and thirty-nine perches from a stone, fixed 
by them on the north point of Fenwiek's land. About the 
proper termination of the peninsular line running thence, they 
disagreed; Baltimore's commissioners contending that the entire! 
line across the peninsula, from the middle of which the tangent 
line was to start, should terminate at Slaughter's Creek : and 
those upon the part of Penn, insisting upon the extension of the 
line to the eastern verge of the Bay. The former line was as- 
certained to be sixty-six miles and twenty-four and a half perches, 
and the latter sixty-nine miles and two hundred and ninety-eight 
perches. 

In this state of execution, the progress of the work was sus- 
pended by the death of Charles Lord Baltimore, in April, 1751, 
Death orcharie* w ' tn wnom 'l ie agreement of 17»3"2 had been enter- 
^"dhi^iforuTif e ^ i»to, and fresh sources of controversy were at 
t»7vTi W rr*iTiue once opened. Two conveyances of the province 
decree ui 1 1 w. m str j ct settlement had been made by the proprie- 
taries of Maryland, under which Frederick Lord Baltimore, the 
heir of Charles, now contended that he was protected from 
the operation of the agreement of 1732 and the decree of 
1750, and therefore resisted the execution of the decree. (60) 
Thus resisting, he endeavoured to ascertain to what extent a 
compliance with the agreement and decree would affect his ter- 
ritory: and with this view in 175'}, he ordered governor Sharpe to 
furnish him with the best possible information as to the present 
state of the boundaries between Ins province and Pennsylvania, 
and particularly as to the lower counties, the location of Cape 
Henlopcn, and the elTect of the twelve miles circle if the radius 
were determined by horizontal measurement. The council of 
the province, to whom these enquiries were referred by the go- 
vernor, declined a reply until a survey could be made of the nor- 
thern or tangent line: hut in September, 1753, the subject being 
again under consideration, they inform tin; proprietary "lli.il 

i . I.,, nt ..I 11 60 



44 THE GRANT AND TERRITORIAL LIMITS [Intro. 

there is so much uncertainty as to the heads of the rivers run- 
ning into the Chesapeake Bay, as well as to the circle of New 
Castle, that they would not advise any particular boundary, unless 
a due north line could be run from the peninsular line, as also a 
due west radius from the centre of the circle. (Gl) 

Hence it was that Frederick, being unable after inquiry to de- 
termine the exact effect of the decree upon his territory, and 
The final agree- particularly upon his possessions along the Bay, was 

meutof 4th July, . . 

'7»>. resolved to resist it : and to enforce his submission, 

a bill of revivor was filed against him by the Penns in 1754: but 
before a decree was had upon this new state of the controversy, 
it was finally determined by the agreement of the 4th of July, 
17G0, between himself and Thomas and Richard Penn, the sur- 
viving proprietaries of Pennsylvania. This agreement of 1?G0 
adopted the agreement of 1732, and the decree of 1750, in their 
full extent, as to the definition of the boundaries : and also all 
the proceedings of the former commissioners under them so far 
as they had been definitive. Cape Henlopen was determined to 
be the point located as such, by these commissioners, and the 
peninsular line, which had been contended for by the Pennsylva- 
nia commissioners, was also adopted ; and therefore the point at 
which the tangent line was to start from said peninsular line, was 
fixed at the distance of thirty-four miles and three hundred and 
nine perches from the point of beginning at Cape Henlopen. 
At the point of intersection of the tangent and peninsular line, 
boundary stones were to be planted at their joint expense, marked 
on the south and west by the Baltimore family arms, and on the 
north and east by those of the Penns. It was also agreed that 
the old bill in Chancery should be dismissed without costs, and 
that either party within thirty days after the filing of a bill by the 
other, predicated upon this agreement, would file his answer ad- 
mitting this agreement, and his liability to the original agreement 
and decree, and assenting to the cause being put down at once 
for hearing and answer: and that, if necessary, Baltimore would 
join in a petition to the king to establish the agreement. 

It contains also a saving of the rights of grantees, and those 
claiming under them in or to all lands held under grants from the 

(61) Council Proceedings, Liber T. R. and U. S. 14 tol8 and 33. 



Chap. I.] OP THE STATE OF MARYLAND. 45 

proprietaries of Mai viand, (which were by this agree- 

Savingi under it. ' , , 

rnpiit ceded to Fennsyli ;inia, ) where the grantee w as 
in (lie actual possession and occupation of tliem: and a similar 
saving as to lands ceded to Maryland, which were held by grantees 
from the proprietaries of Pennsylvania, or those claiming under 
them, and in their actual possession : and in all such cases, such 
lands were to be holden of the new proprietary as they were held 
under the original grant. Besides this general savin,'', it contains 
also a special saving of rights under grants from the proprietaries of 
Maryland, to any lands lying north of the line running west from 
the Susquehanna, and within a quarter of a mile of it : and a 
similar saving as to grants from the proprietaries of Pennsvlva- 
nia, of lands lying south and within a quarter of a mile of said 
line, where the grantees, or those claiming under them, were in 
the actual possession of such lands. (6-2) 

To carry this agreement into effect, not less than three nor 
more than seven commissioners, were to be appointed by each of 
Procep.iines or tn e parties to the agreement, within thirty days after 
undeMtTand^heir ' ts execution. These commissioners were accord- 
ing report - ingly appointed, and assembled at New Castle for 
the commencement of their operations, on the lDth November, 
1760: and wen' from time to time engaged in the performance 
of the duty, until the 9th November, 1768, when their labors were 
closed by their final report to the proprietaries. During this 
period, they caused to be kept a minute account of all their 
deliberations, instructions and proceedings, relative to the adjust- 
ment of the various parts of these intricate boundaries, which 
has been preserved, and is worthy of preservation as a model of 
accuracy and fidelity in the record of public transactions. (63) 

(62) This agreement of 17C0, which fully illustrates tlie progress of the 
controversy from the agreement of 17.'S2 down to that period', is deposited in 
the Council chamber, and lias also been recorded at large amongst the land 
records of Maryland, in Liber .!■ 6. No. I'., in pursuance of the directions of 
resolution 7th, of November session, 1788. To give effect to the Barings of 
the rights of settlers under tin- compact, provision ia made bj the Ad of 
IT-."., ebap. 66, lor issuing patents for lands held under Pennsylvania grants 
to those entitled, upon tin pa] men! of office fees. 

(63) The commissioners originally appointed were, on the part of Mary- 
land, his excellency Horatio Sharpe, Benjamin Tasker, Jr. Edward Lloyd; 



46 THE GRANT AND TERRITORIAL LIMITS [Intro. 

The result of their labours in the definitive adjustment and actual 
location of these boundary lines, cannot be more accurately or 
succinctly stated than it is in their own report, from which we 
extract and subjoin that part of it which relates to the location of 
the lines. After setting out in detail the authority under which 
they acted, they report as follows: 

"1st. We have completely run out, settled, fixed and determined 
a straight line, beginning at the exact middle of the due east and 
west line mentioned in the articles of the fourth day of July one 
thousand seven hundred and sixty, to have been run by other 
commissioners formerly appointed by the said Charles Lord Bal- 
timore and the said Thomas Penn and Richard Penn, across the 
peninsula from Cape Henlopen to Chesapeake Bay, the exact 
middle of which said east and west line, is at the distance of 
thirty-four miles and three hundred and nine perches from the 
verge of the main ocean, the eastern end or beginning of the said 
due east and west line : and that we have extended the said 
straight line eighty-one miles seventy-eight chains and thirty 
links up the peninsula, until it touched and made a tangent to 
the western part of the periphery of a circle drawn at the hori- 
zontal distance of twelve English statute miles from the centre of 
the town of New Castle, and have marked, described and per- 
petuated the said straight or tangent line, by setting up and 
erecting one remarkable stone at the place of beginning thereof, 
in the exact middle of the aforesaid due east and west line accord- 
ing to the angle made by the said due west line, and by the said 
tangent line; which stone, on the inward sides of the same facing 
towards the cast and towards the north, hath the arms of the 

Robert Jenkins Henry, Daniel Dulany, Stephen Bordley and the Rev. Alexan- 
der Malcolm : and on the part of the Penns, the Hon. James Hamilton, Wil- 
liam Allen, Richard Peters, Benjamin Chew, Lynford Lardner, Ryves Holt 
and George Stephenson, Esqrs. In the progress of this tedious and protracted 
work, the Rev. John Barclay, George Stuart, Daniel of St. Thomas Jenifer 
and John Beale Bordley, were appointed on the part of Maryland, to fill the 
vacancies occasioned by the declension of several of its original commission- 
ers : and the Kev. John Ewing, William Coleman, Edward Shippen and Thos. 
Willing, Esqrs. were appointed to fill vacancies similarly occurring in th« 
Pennsylvania board. The accurate record of their transactions alluded to in 
the text, which contains a journal of their proceedings, authenticated at the) 
close of each day by the signature of every commissioner present, has been 
preserved in the Land Office of this State. 



Chap. I.] OF THE STATE OF MARYLAND. 47 

said Thomas Perm and Richard Penn graved thereon, and on 
the outward sides of the same facing towards the west and towards 
the south, hath the arms of the said Frederick Lord Baltimore 
graved thereon : and have also erected and set up in the said 
straight or tangent line, from the said place of hrginning to the 
tangent point, remarkable stones at the end of every mile, each 
stone at the distance or end of every five miles, being particular- 
ly distinguished by having the arms of the said Frederick Lord 
Baltimore graved on the side thereof turning towards the west, 
and the arms of the said Thomas Penn and Richard Penn 
graved on the side thereof turning towards the east, and all the 
other intermediate stones are marked with the letter P on the 
sides facing towards the east, and with the letter M on the * , 
sides facing towards the west, and have fixed In the tangent ,}\ » 
point a stone with the arms of the said Frederick Lord Baltimore 
graved on the side facing towards the west, and with the arms of 
the said Thomas Penn and Richard Penn graved on the side 
facing towards the east. 

"2dly. That from the end of the said straight line or tangent 
point, we have run out, settled, fixed and determined, a due north 
line of the length of five miles one chain and fifty links, to a par- 
rallel of latitude fifteen miles due south of the most southern 
part of the city of Philadelphia, which said due north line inter- 
sected the said circle drawn at the distance of twelve English sta- 
tute miles from the centre of the town of New Castle, one mile 
thirty-six chains and five links from the said tangent point, and / 
that in order to mark and perpetuate the said due north line, we N 
have erected and set up one unmarked stone at the point where 
the said line intersects the said circle, three other stones at a 
mile distance from each other graved with the letter P on the 
sides facing the east, and the letter M on the sides facing the 
vest, between the said place of intersection of the said cirple 
and the said parallel of latitude, and a third stone at the point 
of intersection of the said north line and parallfl of latitude, 
which last -tour' on the sides facing towards the north and east, 
hath the arms of the said Thomas Penn and Richard Penn 
graved thereon, and on the sides facing towards the south and 
west hath the arms of the said Frederick Lord Baltimore graved 
thereon. 



*f 



43 THE GRANT AND TERRITORIAL LIMITS [Intro. 

"3dly. That we have run out, settled, fixed and determined, 
such part of the said circle as lies westward of the said due north 
line, and have marked and perpetuated the same, by setting up and 
erecting four stones in the periphery thereof, one of which, at the 
meridian distance of one mile from the tangent point, is marked 
with the letter P on the east and the letter M on the west 
sides thereof. 

" 4thly. That we have run out, settled, fixed and determined, 
a due east and west line, beginning at the northern point or end 
of the said due north line, being the place of intersection of the 
said north line, with the parallel of latitude, at the distance of 
fifteen English statute miles due south of the most southern part 
of the city of Philadelphia, and have extended the said line, two 
hundred and cV*J& y miles eighteen chains and twenty-one links 
due west from the place of beginning ; and two hundred and 
forty-four miles thirty-eight chains and thirty-six links, due west 
from the river Delaware ; and should have continued the same to 
the end of five degrees of longitude, the western bounds of the 
Province of Pennsylvania, but the Indians would not permit us.. 
And that we have marked, described, and perpetuated the said 
west line, by setting up and erecting therein, stones at the end of 
every mile, from the place of beginning, to the distance of one 
hundred and thirty-two miles, near the foot of a hill, called and 
known by the name of Sideling hill ; every five mile stone having 
on the side facing the north, the arms of the said Thomas Penn 
and Richard Penn graved thereon, and on the side facing the 
south, the arms of Frederick Lord Baltimore graven thereon, and 
the other intermediate stones are graved with the letter P on the 
north side, and the letter M on the south side, and that the 
country to the westward of Sideling hill, being so very mountain- 
ous, as to render it in most places extremely difficult and expen- 
sive, and in some impracticable, to convey stones or boundaries 
which had been prepared and marked as aforesaid, to their pro- 
per stations, We have marked and described the said line from 
Sideling hill to the top of the Allegany Ridge, which divides the 
waters running into the rivers Potowmack and Ohio, by raising 
and erecting therein, on the tops of ridges and mountains, over 
which the said line passed, heaps or piles of stones or earth, 
from about three and an half to four yards in diameter, at bot* 



Chap. I.] OF THE STATE OF MARYLAND 49 

torn, and from six to seven feel in height, and thai from the top \ 
of the said Alleghany Ridge westward, as far as we have con- 
tinued the said line, we have set up posts at the end of everyr 

mile, and raised round each post, heaps or piles of stones, or 
earth of about the diameter and height before mentioned." (64)' j 

Thus were finally adjusted what are now the eastern and / 
northern boundaries of Man land, which separate it from the/ 
states of Delaware and Pennsylvania respectively. Yet even 
New sources of tms controversy had not terminated before the pro- 
controversy, prietary of Maryland found himself involved in ano- 
ther, menacing the loss of another fertile portion of his province. 
Like the bayed lion, he had only shaken one adversary from Ins 
mane, to turn him to another who was biting at his heel. A whole 
century had been spent in fruitless contests for his northern and 
eastern territory, and he was now to begin another contest for his 
southern and western boundary, which has not terminated even 
at this day, and is likely to be of equal endurance with the 
former. This related to, and grew out of the description of 
"the first fountain of the Potowmack," as the common terminus 
of the western and southern boundaries of Maryland : and was 
predicated upon a grant of the northern neck of Virginia, to the 
origin of which it will be necessary briefly to refer. 

It was first granted by Charles II. in the first year of his reign, 
or rather, the first year after Charles 1. was beheaded, for Charles 
II. was then a monarch without a crown, a king without sub- 
jects, and a grantor without territory. He was then emphatically 
('harks <; Lackland" and in an admirable condition lor making 
grants to secure the adhesion of the followers of his fallen fortunes. 

(fit) This east and west line between Pennsylvania and Maryland, is the , 
line commonly called by the namr of Mason and Dixon's line, which has 
been so often referred to, in polilbvil and other discussions, a- the line of de- 
marcation between the northern and southern, or the slave-holding and non- 
slave-holding states, it is bo called, because this pari of the survey was ac- 
complished under the direction of Messrs. Mason and Dixon, who wert 
specially employed en the proprietaries "f the two 

states, and were him!, i ih< ir special instructions tak< d into the emploj of the 
eoaumiseionen in N< ••■ mb< r, 1763. \t thai period, the principal pari of the 
peninsular sum t completed and hence this line is peculiar!] call 

Hi's and Dixon's line 
7 



50 THE GRANT AND TERRITORIAL LIMITS [Intro. 

Grant of the The grantors iii this grant were Lord Hopton, Lord 
northern neck, jermyn, Lord Culpepper, Sir John Berkeley, Sir 
William Morton, Sir Dudley W r yatt, and Sir Thomas Culpepper, 
and the territory granted, was, "all that tract of land, lying and be- 
ing in America, and bounded within the heads of the rivers Rapa- 
hannock and Quiriough or Potowmac, (the courses of the said 
rivers as they are commonly called and known by the inhabitants) 
and the " Chesapeake bay." After the restoration of Charles, 
the validity of the grant was drawn in question, and the title to 
it having passed, by the death of some of the proprietors, and by 
purchase from others of them, to the earl of St. Albans, Lord 
Berkeley, Sir William Morton and John H. Tretheway, Esquire, 
the original grant was surrendered by them for the purpose of re- 
ceiving a new grant for the same territory, for which they accord- 
ingly obtained letters patent from king Charles, in May, 1609. 
Although Virginia was, at the period of these grants, a royal 
government, (as the colonial governments, which were direct- 
ly administered by the crown, were styled :) and being such, 
the power of the crown to grant, at its pleasure, the vacant lands 
within its jurisdiction, was unquestionable, they yet occasioned 
great discontents amongst the colonists of Virginia. The grant 
of Maryland, as we have already seen, was long resisted as a 
dismemberment of the colony ; and being followed by these 
grants, they began to apprehend their reduction to a secondary 
rank amongst the colonies. Yet the grants of the northern neck 
carried with them nothing but the rights of soil, and the incidents 
of ownership, for they were expressly subjected to the jurisdiction 
of the government of Virginia. The discontents fermented by 
this and other acts of the crown, rose to so high a pitch, that 
agents were sent to England, in April, 1075, by the Assembly of 
Virginia, who were instructed amongst others things to remon- 
strate against the grant, and to request that the Assembly might 
be authorized, by act of incorporation, to purchase it from the 
proprietors. Their requests were favourably received, but the 
gratification of them was prevented by causes, to detail which 
would be foreign to our present purposes. It will suffice to say, 
that the title to the whole having vested in Thomas Lord Cul- 
pepper, a new patent for it was granted to him by King James 
(I, jnthe fourth year of his reign, and that from him it descended 



Chap. I.] OF THE STATE OF MARYLAND. 51 

to his daughter and only Child, who was married to Lord Fairfax, 
and thus passed into the Fairfax family. (65) 

These grants of the Northern Neck, as it will he perceived, 
call for the lands lying on the south side of the Potomac to its 
head, and in this call there was nothing inconsistent or clashing 
The extension with the call of the charter of Maryland. The call 

of the Claim un- 
der iiiese jjrauu of the latter is to the first fountain or source of the 

to the north 

branch. Potomac, which was of course its head, and there- 

fore a conflict between these two grants could only arise from the 
extrinsic difficulty or doubt, as to the true location of the first 
fountain or head. As then, the patents for the northern neck 
did not appear upon their face to be infractions of the proprieta- 
ry's chartered rights, and could only become so by disputes about 
the true location of the common call, they were not calculated to 
excite his jealousies, or to beget difficulties between him and the 
claimants under the former, until the settlements began to extend 
towards the head of the Potomac. /ilencc, it does not appear 
that his attention was directed to the ascertainment of the first 
fountain, or that he was involved in any controversies about it, 
until the middle of the eighteenth century. Early in that cen- 
tury, Lord Fairfax had visited Virginia for the purpose of survey- 
ing the grant of the Neck; and it appears from the recitals of an 
act of the Virginia Assembly, in the year 1.736, that at that peri- 
od, be and his predecessors, through their agents and attornies, 
had already granted a considerable portion of it. ((56) In 1749, 
a Land Oilice for the grant of the lands in the neck, was formally 
opened by Fairfax, and kepi open until his death, in 1781, which 
was conducted in his name, and at his expense, as the proprie- 
tor of the northern neck. (67) 

conrie pursued A wnh field being thus opened to the spirit of 
t.v the propriel i- ' ' 

rjr of Maryland, enterprise and speculation, the grants were soon 

extended bo far to the wrejsl as to raise the question as to the lo- 

I j -if these grants, of which a summary is given above, 

eeChalmi . ith'sHistory of Virginia 1 66. Recital of the 

I3 lh Chapti i ( h ini , i.,, thi pear 1736, and the 

casc f '' I LHuntei D risee, 7th Crancft's Reports, 603. 

: Virginia, 1 Code of 1813 
I i 

i : Ci tm I 



52 THE GRANT AND TERRITORIAL LIMITS [Intro. 

cation of the head of the Potomac, and at the same moment that 
Frederick Lord Baltimore, the then proprietary, was endeavour- 
ing to ascertain the exact effect which the agreement of 1732, re- 
lative to his northern boundaries, would produce upon his grant, 
we find him directing his attention also to its western limits. In 
his instructions to governor Sharpe, which were presented by 
the latter to his council in August, 1753, he alludes to the Fair- 
fax grant, and remarks that he had been informed that the gov- 
ernment of Virginia had undertaken to ascertain the limits of his 
charter: and that the commissioners who had been appointed for 
this purpose, instead of stopping at the South Branch, which runs 
from the first fountain of the Potomac, had gone even to the North 
Branch — that if any such adjustment was made, he had no know- 
ledge of his predecessor being a party to it; and therefore con- 
cluded by it, that if it were made with the privity of the latter, 
it would be invalid, as the former proprietary held the province 
only as a tenant for life under a strict settlement. He therefore 
directs the governor to obtain early intelligence of the manner in 
which the boundaries were settled by these commissioners, and 
to apprise lord Fairfax of his desire to adjust that boundary with 
him: and he at the same time commands him to "keep a good 
look out, and prohibit settlements under Fairfax in the country 
north of the South Branch." (68) These instructions being laid 
before the council, in order to a compliance with them, they en- 
deavoured to collect information with reference to the relative 
extent of the north and south branches of the Potomac, and for 
this purpose they summoned before them Col. Thomas Cresap, 
one of the settlers in the western extremity of the State, who was 
supposed to be familiar with the course and extent of these 
branches. He accordingly attended at their next session in Sep- 
tember, 1753, and informed them, that in his opinion the south 
branch of the Potomac was the longest stream, because it conti- 
nued, as he thought, the longest stream even from its mouth, and 
ran about sixty miles further in a north eastern direction than did 
the north branch. (09) Thus informed, the governor addressed a 
letter to lord Fairfax, in which, after apprising him of the instruc- 

(68) Council Proceedings of Maryland, Liber T. R. and W. S. page 12. 

(69) Council Proceedings, Libcv T. R. and W. S. 13. 



Chap. I.] OF T1IR STATE OF MARYLAND. ;,:» 

firms recehed from the proprietary, he remarks thai the informa- 
tion, which he had obtained, induces him to believe that there has 
been some mistake in fixing the fountain head of the Potomac at 
the source of the north branch, inasmuch as the relative lcn<nh 
of the two branches, and other circumstances, concur to show that 
the soutli branch, commonly called " Wappacomo," is the main and 
principal course of that river. He therefore expresses the hope, 
that his lordship will concur with him in causing such an exami- 
nation of these branches to be made, as will put the question -to 
rest. (70) 

The adjustment of the boundaries of Fairfax's grant, which is 
alluded to in these instructions of the proprietary, was one of the 

The previous nature of which he appeared to have been wholly mi- 
adjustment of . . 

the boundaries apprised, liis instructions are predicated upon the 
between the go- 
vernment of supposition, that the surveys miy-lit possibly have 
Virginia & lord lr . J s r j 

Fairfax. been made with the knowledge and concurrence of 

his predecessor: and hence lie denies the power of the latter to 
enter into any arrangements as to the boundaries which could ex- 
tend beyond his lite otate, or conclude those in the remainder. 
This caution was wholly unnecessary; for it docs not appear, from 
a full examination of all the proceedings of the proprietary go- 
\ eminent, on record in the province, that the proprietaries of 
Maryland were ever, in any wise, privy to any settlement of the 
boundaries which contemplated the extension of Fairfax's grant 
to the north branch: nor arc we aware that it has ever been al- 
leged. The only adjustment, which ever took plaoe, was one, 
growing out of controversies between Fairfax and the govern- 
ment of Virginia, having reference, solely, to the conflicting terri- 
torial claims, and concluded by proceedings, to which Baltimore 
u;i- ID no Wise a party, and of the existence of which, he and his 

■ r mi n nt appear to have had no knowledge, before they 
were terminated. The histories of Virginia are singularly bar- 
ren, in all that relates to this adjustment between the crow n and 
lord Fairfax ; and there are no published or unpublished docu- 
ments within our reach, which enable us to presenl it in detail, or 
to illustrate fully the character of the controversy which it termi- 

70 Notea on Virgin, I'.H 



54 THE GRANT AND TERRITORIAL LIMITS [Intro. 

nated. Mr. Jefferson has given us a reference to the several 
documents connected with it ; but in such a manner, as to indi- 
cate, rather, that he merely knew that they were in existence, than 
that they had come under his personal observation. (71) Enough, 
however, is known, to enable us to state the general result, 
which alone is important in connexion with our present enquiry. 
It appears that in 1733, a petition was preferred by Fairfax to the 
King in Council, praying, that a commission might issue for run- 
ning and marking the dividing line, between his grant and the 
province of Virginia, and that the commission was accordingly 
issued, and the survey made and reported in August, 1737. In 
December, 1738, these reports were referred to the consideration 
of the council for plantation affairs, by whom a report was 
made in 1745, which determined the head springs of the Rap- 
pahannock and Potomac, and directed that a commission 
should issue to extend the line. This report was confirmed by 
the King in Council : and the line being adjusted in conformity 
to it, an act was passed by the General Assembly of Virginia, 
in the year 174S, which adopts the order in Council, and con- 
firms all previous grants made by the crown, of lands lying with- 
in the limits of the Fairfax grant. (72) The line thus settled, 
adopted the north branch of the Potomac, as the first head of 
that river, by which location of it, thus pushing over the Fairfax 
grant to this branch, without even considering, much less re- 
specting, the claims of the proprietary of Maryland, each of 
these interested parties were to be benefitted at his expense. On 
the one hand, the territory subject to the jurisdiction of Virginia 
was enlarged ; and on the other, Fairfax gained a more valu- 
able territory lying between the north and south branch, than 
that which he lost lying east of the head of the south branch, 
and between it and a meridian passing over the head of the north 
branch. During all this period, the situation of the proprietary 
of Maryland afforded to these parties the most favourable oppor- 
tunity for practising this usurpation of his rights. His petition 
for the confirmation of his grant, so as to exclude the claims 
of the Penns, was then pending before the King in Council, to 
await the issue of the proceedings in Chancer) upon the agreement 

(71) Jefferson's Notes on Virginia 193 and 191. 

(72) Jefferson's Note? 103 Virginia, revised Code of 1812, page 14 



Chap. I.] OF THE STATE OF MARYLAND. 

of 173-2 which was all the while progressing. The momentous 
character of that proceeding was well calculated to engross Ins 
attention, andto divert it entirely from these ex-parte transactions, 
on the part of Fairfax, which did not upon theii lace even pro- 
fess to interfere with his grant; and to the purpose of winch, he 
waa awakened only by the knowledge of the actual location from 
the north branch. His death, shortly afterwards, prevented the 
proprietary from adopting any decisive measures for the vindica- 
tion of his rights : but the instructions of his successor in 1753, im- 
mediately alter Ins accession to the proprietaryship, exclude all 
inference of acquiescence in these unwarrantable acts; and mani- 
fest a full determination on his part, to exclude all settlements 
which might be attempted under them upon his territory. 

The letter of the governor of Maryland to Fairfax shews 
us that this determination of the proprietary was promptly met, 
and seconded by his officers: but we are left utterly in the dark 
causes which a s to the further progress of the negotiation thus 
Soverly S opened. From this period, until the revolution, the 
J£&Sm~ existing records of our Council and Assembly trans- 
IL 1 " 6 rcv ° 1U ' actions are entirely silent as to this contest, ol 
which an accurate history can be collected, only from the re- 
cords of the English Council. We know only that Fairfax con- 
tinued to adhere to the line, as adjusted between him and the 
crown and to issue grants for the disputed territory; and that the 
proprietary of Maryland continued to assert his Claims to the first 
fountain, be that where it might, and waited but a favourable op- 
portunity for bringing the subject before the King in Council. 
For some years after the controversy was opened, the attention 
of the government of the province was wholly engrossed with 

ito internal concerns, and its efforts, in common with I ther 

colon- in the prosecution of the French and [ndian wars : bul 
these being terminated by the definitive treatj of peace, conclud- 
ed a1 pans in February; L763, it is probable, that by the rela- 
tion of peace upon the borders, the settlements of Maryland 
would soon have been pushed ... its extreme limits. Had thu 

occurred, there would n have ensued a collision between the 

Bt8 of the proprietary and of Fairfax; and this collision would 

at once, either have broflghl aboul an amicable adjustment ol 
the boundaries, or have forced i1 for determination before tn< 



56 THE GRANT AND TERRITORIAL LIMITS L i n tru. 

King in Council. At this moment, when the conflict seemed in- 
evitable, two causes for its suspension arose, which held this 
difference in abeyance, until the revolution came to convert it 
into a contest between free and independent states. By the 
treaty of Paris in 1763, above alluded to, a large territory was 
ceded to the English, within which newly acquired territory, it 
became necessary to organize colonial governments. For this 
and other purposes, a proclamation was issued by the king, in 
October, 1763, by which, and to enable the English government 
to carry into effect its engagements to the Indians, the colonial 
governments generally, were prohibited from granting any lands 
lying west of the sources or heads of any of the rivers, flowing 
into the Atlantic from the west, and north-west. (73) In the en- 
suing April, instructions were issued by governor Sharpe, to the 
Judges of the Land Office, which set forth, that the proprietary 
was desirous to have reserved for him, ten thousand acres of 
land in the western part of Frederick County, to be held as a 
manor; and that he had therefore instructed the surveyor of that 
county not to execute any warrant on any lands lying beyond 
Fort Cumberland, until that reserve was taken off. This general 
interdict of the crown, and the reserve to the proprietary, each 
tended to check the progress of the settlements, in the direction 
ofthedebateable territory; and the proprietary and his officers 
now waited for the first favourable opportunity of bringing the 
question before the council, which might present itself. In 1771, 
a survey of the two branches was made by Colonel Cresap, un- 
der the direction of the proprietary. Our records do not distinct- 
ly inform us, for what purpose it was made. The survey itself, 
has been preserved in our Land Office, and presents a very accu- 
rate view of the courses of the two branches, through the heads 
of which, meridians are drawn, for the purpose of determining 
their relative extent to the west. From the year 1753 up to this 
period, it appears to have been continually held on the part of 
Maryland, that the south branch was the most western source, 

(73) This proclamation was not intended to alter the boundaries of the 
Colonies, but was a mere temporary arrangement, suspending for a time the 
settlement of the county reserved. See Supreme Court of United States, ia 
Fletcher vs. Peck, &c. Cranch 142. 



Chap. I.J OF THE STATE' OP MARYLAND. . r ,7 

and therefore, the first fountain : but the survey of 1771 appears 
to have been the first actual examination and survey of the two 
branch-., whirl, was made with this view. The papers, connect- 
ed with the settlement of the expenses of.the survey, shew, thai 
it was made under the directions of the proprietary government; 
and it seems probable that it was made, both for the purpose of 
informing the proprietary as to the true location of the branches, 
and of furnishing a basis for any application which might be made 
by him to the King in Council. In March, 1774, the subject of 
the reserve, on the lands tying westward of Fort Cumberland/be- 
ma brought before the proprietary's Hoard of Revenue, which 
had been organized in L766, 67, that Board determined, that 
the object of the reserve had been accomplished, in the surveys 
actually made for the proprietary ; and, therefore, took off the 
reserve. This determination led to a correspondence between 
them and Mr. Jenifer, the proprietary's agent, which exhibits 
the course of the proprietary before that period, and illustrates 
his motives for forbearance. Mr. Jenifer disapproved of the 
course pursued bj the Board, in throwing the western lands open 
for grant: and in the hope of dissuading them from it, headdres- 
sed them a letter in May, 1771, in Which he states, thai he had 
heard, that grants had been issued since their decision, under 
which, persons were not only making surveys to the west of Fort 
Cumberland, but even across the AJleghany moumtains.and wesl 
of the men. ban of the north branch. Such surveys he consul- 
ered as not only in contravention of the king's proclamation of 
176% bul also al war with the pottcj of the proprietary. The 
proprietary, says he, has hitherto cautiously avoided giving of- 
fence by granting lands westward of the line, settled between 
the crown and Lord Fairfax; and although there is nol a doubt, 
that the south branch is the fountain head, and the point at 
which the meridian for the western boundary oughl to start, ye1 
the proprietary is waiting for a favourable Opportunity ofbring- 
,,,_, it before th< King in Council. In conclusion, he exprt 
,,,,. hope, thai some recent territorial differences between \ irgi- 
nia and Pennsj li ania, under winch, each goverqmenl had ai 
ed those acting under the authority of the other, would bring 
about this much wished for occasion. The replj of the Board 

through Mr. Steuart, relies u| the confession of the 

B 



; > s ni1 - GRANflF AM) TKRRITORIAL LIMITS [Intro. 

to what are the proper limits, and declares, that it does not bo- 
come either them or the agent, to do any act which may have a 
tendency to restrict those limits. " The proprietary, (say they,) 
lias lately been at the expense of running a line to the south 
branch, and if the Virginians hear that he doubts about the ex- 
tension of his limits, it will be an encouragement to them to begin 
to throw stones." Mr. Jenifer still continued to press upon them 
the propriety of delaying this step, and urged, that as the proprie- 
tary had not, before the decision of the Board, made any grants 
of lands, lying west of the north branch, a delay of the measure 
.could not weaken the proprietary claim, or encourage the pre- 
tensions of the Virginians. The Board still adhered to their de- 
termination, and large grants of land on the reserve were imme- 
dately made, and continued to be made, until October, 1774, 
when instructions were received from the proprietary, directing 
the Judges of the Land Office to suspend all further grants of the 
reserved lands, and to prepare and transmit to his guardians an ac- 
curate list of all warrants issued under the order of the preceding 
March, and of all settlements and locations made within the ter- 
ritory thrown open by that order, since the year 1763. (74) 

So stood the controversy between the proprietaries, when the 
American Revolution came to elevate the provinces of Maryland 
Effect of. the re- antl Virginia, to the rank of free and independent 

volution upon il. . . P • P ... . . r 

states. Jb airfax was stjll the proprietor of the Nor- 
thern Neck, and in the full exercise of all the powers incident to 
his absolute ownership of the soil, subject to the jurisdiction of 
the royal government of Virginia ; and the effect of the revolution 
upon his grant was to substitute the jurisdiction of the state go- 
vernment, whilst it left him in the full enjoyment of the grant. 
By this change, the question as between the two states, was, as to 
Virginia, merely one of jurisdiction over the debateable territory, 
and so remained until the death of Fairfax in 1781. It would be 
useless, in our present inquiry, to pass in review the legislation of 
Virgmia as to the Northern Neck, subsequently to the death of 

(74) The proceedings of the Board of Revenue are preserved, and may now 
be found in the Land Office. The titles acquired under warrants, issued be- 
tween the 22d of March and the 6th of October, 1774, to affect lands lying 
westward of Fort Cumberland, were saved by tbc act of 1784, Chap. 7o. 



Chrap. I.] OF THE STATE OF MARYLAND 5QF 

Fairfax. It will suffice to say, that it was by him devised to 
Denny Fairfax ; and that, in consequence of his alienage and 
aiisi nee from the province, several acts were passed by tin As- 
sembly of Virginia, by the last of which, the act of L786, chap. (>•'}, 
the state of Virginia claimed the ownership, and made provision 
for the grant, of vacant lands in the Northern Neck. All of these 
acts were subsequently declared by the Supreme Court of the 
I sited States to be insufficient to divest the title of Fairfax's de- 
visee ; and tin 1 defect in his title, because of alienage, was held to 
be cured by the Treaty of I7!M. (75) These acts, which left the 
title in the devia e, from whom it passed to his grantees, are here 
adverted to only for the purpose of shewing that as early as 1785, 
the State of Virginia, having assumed to herself the ownership of 
the vacant lands in the Northern Neck, stood clothed with 
claims similar to those of the State of Maryland. 

Returning to the consideration of this contest for territon 
which, by the force of the re\ olution, had become a subject for ad- 
vircimncedrsio justmenl between these so vere ign , independent, yet 
wrVt.'.Vy 1 *X*ej! sM, ' r ^ ; " ,s ot ' &e confederacy, we are now to un- 
iubject r to C eer^n '""''' ,no causes which have delayed that adjustment 
reservations. even until this day. That it should now be where 
the revolution found it, may excite our surprise'. The history of 
the transaction; if it removes the wond< r, will also tell us where 
the censure lie<. It baa been sees, that, up to the era of the re- 
volution, the claim of the proprietary of Maryland to the first foun- 
tain of the Potomac be thai where h might, bad never been for a 
moment relaxed, and that, whatever the adversary possession of 
the disputed territory, it was held in the (act of-a continual claim 
and assertion of right on his part, and against Ins unceasing efforts 
to reclaim it. The revolution having cast upon the State of Vir- 
ginia the adjustment of the boundary, deader circumstances mch as 
these, left her no equitable objections to urge against the claim 
of Maryland to the lull extent of her territory, as defined |,\ hei 
charter. Hence, in the constitution ofA irginia, adopted in June 
I77<> \\ e find a full and exprt 3s r< cognition of the righl of Mar) 
land to all the territory contained within its charter, with all 

1 t Hunter's lessee, at February term, 1813 

ported in 7th Cram li, 60" 



60 THE GRANT AND TERRITORIAL LIMITS [Intro. 

rights of property, jurisdiction and government, and all other 
rights whatsoever to the same, which might at any time thereto- 
fore have been claimed by Virginia, excepting only the free navi- 
gation and use of the rivers Potomac and Pocomoke, with the 
property of the Virginia shores or strands, bordering on either of 
said rivers, and all improvements which have been or shall be made 
thereon." (76) 

The object and necessity of this exception will at once be ap- 
parent, when we reflect upon the new relation in which the two 
These rcserva- provinces now stood to each other, as sovereign 

t tons secured to ° 

her by compact states; and the promptitude with which the desire of 

with Marylana 

in 1785., Virginia to keep open to her citizens the enjoyment 

of these rights of navigation and their incidents, was met and re- 
ciprocated by the State of Maryland, places her conduct in a very 
favourable point of view. (77) In the very next year after this 
constitutional reservation, by a resolution of the Assembly of Ma- 
ryland, Daniel of St. Thomas Jenifer, Thomas Stone and Samuel 
Chase, were appointed commissioners on the part of Maryland for 
the purpose of adjusting with the commissioners on the part of 
Virginia (George Mason and Alexander Henderson) " the navi- 
gation of, and jurisdiction over, that part of the Chesapeake Bay 
which lies within the limits of Virginia, and over the rivers Poto- 
mac and Pocomoke," subject to the ratification of the general As- 
sembly. (78) The result of the conferences of these commission- 
ers was a compact, formed at Mount Vernon, on the 28th March, 

(76) Virginia Constitution of 177G, article 21st. 

(77) It is, however, proper to state, that this reservation of Virginia was not 
well received at first. In October, 1776, the subject of it was brought under 
the consideration of the convention which formed our present State Constitu- 
tion, by which several resolves were adopted, asserting in the broadest terms 
the right of Maryland to all the territory included in the charter, to the sole and 
exclusive jurisdiction over all the waters, bays, &c. within that territory, and 
especially to the Potomac and such part of the Pocomoke as falls entirely with- 
in its territory ; and declaring that the river Potomac, and that part of the 
Chesapeake Bay lying between the capes and the northern boundary of the 
State, or so muchthere of as is necessary to the navigation of the Potomac and 
Pocomoke, ought to be considered a common highway, free for the people of 
both States, without being subject to any duty or charge. See Hanson's Edi- 
tion of the laws, which includes the journal of this Convention. 

(78) Resolution 6th of October Session, 1777. 



Chap. I.] OS THE STATE OF MARYLAND. 61 

L785 winch accomplished all the purposes of their appointment, 
and which received the ratification of the legislatures ot both 
states at their nexl session. (71)) 

This compact contains a series of commercial regulations, con- 
General ,fe« - stituting a treaty of commerce predicated upon the 
'"" Kt °' basis of free and equal rights in the navigation oi 
J hl ., ( . riverSj to be maintained for their common benefit, by their 
common efforts, and al their joint expense, and securing these in 
„ raanner eminently calculated to promote and establish an har- 
monious and beneficial intercourse. These regulations have 
been superseded by the adoption of the Constitution of the Uni- 
ted States, which devolved upon Congress the power of regulat- 
ing commerce with foreign nations, and anion- the sei eral States; 
but they are worthy of all commendation, and deserve to he the 
nosi cherished pari of our history, /when we remember, thai to 
these may be traced the germ of the causes which called that con- 
stitution into being, which freed us from that "rope of sand" the 
confederation, and which placed us under the shadow oi thai 
blessed Union, by whose guidance we have been conducted to 
happiness as a people, and to peace, power and prosperity, as 
a „,„;„„. Besides these commercial regulations, tl contains 
provisions for the apprehension and punishment of offenders, for 
the arrest of absconding debtors, and for the security and pro- 
tection of the river and bay possessions of the citizens of the two 
States, which require a passing notice. It provides as to all offen- 
ces committed on that part of the Chesapeake bay which lies within 
the limits of Virginia, or that part of it when the line of division 
from the south point of Potomac river called Smith's point, to Wah 
'kins point near the month of Pocomoke river, may. be doubtful, or 
comaUted on the Pocomoke within the limits of Virginia, or 
where the tine may U doubtful, thai the jurisdiction out the 
saI11 e, if committed by persons, not citizens of Virginia, againsl 
the citizens of Maryland, shad belong to the courts ofMaryland, 
having legal cognizance of such offences, and B ovice versa : and 
tli;tt if committed bj a citizen of Maryland againsl a citizen of 
\ , r_M.ua, or jice *ersa, the jurisdiction over the offence shall be- 

(79) Virginia Acta of Di chap. 18, and Maryland, 

K. \ chap. l«1 



62 THE GRANT AND TERRITORIAL LIMITS [Intro, 

long to the courts of the State of which the offender is a citizen. 
It establishes the same regulations as to offences committed on 
the Potomac river, except in cases of offence or crime by a per- 
son not a citizen of either State, against a person not a citizen 
of either, as to which the jurisdiction shall attach in the State to 
which the offender is first brought. It provides as to all persons 
absconding or flying from justice in any civil or criminal case, or 
attempting to defraud creditors by the removal of property, that 
such person or property so flying or removed, may be seized 
upon any part of said bay or said rivers, by process of the State 
whence the party fled, or the property was removed. It permits 
the process of either State to be served any where, on said rivers, 
on the person or property of any one not being a citizen of the 
other State, so that the process of both States may run over the 
whole extent of these rivers, as against all persons not citizens of 
either State. And lastly, as to the riparious possessions of the 
citizens of the two States, it declares: 1st. That the citizens of each 
State shall have full property in the shores of the Potomac, ad- 
joining their lands, with all advantages and emoluments thereto 
belonging, and the privilege of making and carrying out wharves 
and other improvements, provided they do not obstruct or injure 
the navigation of the river. 2dly. That the rights of fishing in said 
river shall be open to the equal enjoyment of the citizens of both 
States, provided that it be not exercised by the citizens of one 
State, to the hindrance or disturbance of the fisheries on the 
shores of the other, and also that the citizens of neither State 
shall have the right to fish with nets or seines on the shores of the 
other. 3dly. That for any violence, injury or trespass to, or upon 
the property or lands of any citizen of either State, adjacent to the 
bay or the said rivers, or to any person upon such lands, commit- 
ted by any citizen of the other State, upon proof of due notice 
to the offender, to appear and answer in any court of record, 
or before any magistrate having cognizance of such injuries, &c. 
may enter the appearance of such offender, and proceed to trial, 
as if the offender were served with legal process, and the judg- 
ment so rendered shall be valid against the person and property 
of the offender in both States, and execution may be issued as in 
other cases, or upon a transcript of the judgment properly au- 



Chap. 1. J OF THE STATE OF MARYLAND (?:{ 

thenticated, produced to aaj court or magistrate of the State 
where the offender resides, having jurisdiction in the State or 
county where he resides, in similar cases, such court or magis- 
trate may issue execution thereon as upon its or his own judg- 
ment. 
Efforts for a Thus by this compact irrevocable, except by the as- 

settlement of * i * J 

the bounds- .,. M t of both States, all differences were ended which 

ry tmin the 

periodofthis could arise about the rights reserved by Virginia, un- 

eompacl an- J ° 

in the pas- der her constitution : and Maryland was now, by the 

sage of the J J 

act of 1813. concessions ^( thai very constitution itself, as well as 

by the intrinsic efficacy of her charter, confessedly entitled to all 
the territory which fell within her chartered limits, subject to the 
compact. Had she known and pursued her interests, this com- 
pact would never have been formed without making the adjust- 
ment of the western boundary a part of it; and had the conside- 
ration of it been introduced into the negotiation, and its settle- 
ment insisted upon by Maryland, it would doubtless have been 
conceded. Virginia was too much alive to the deep interests 
which she had staked upon that negotiation, and which might he 
lost by its failure, to have hazarded all for an interest compara- 
tively so unimportant, as her claim to mere jurisdiction over a por- 
tion of what was then her remote territory. That it should have 
been passed by, whilst a subject so intimately connected with it was 
under consideration, and that it should not have been brought up, 
even as a subject matter for negotiation, until 17!)"). is truly surpris- 
ing. - * — * > > \JIn that year, by a resolution of the General Assem- 
bly of this State, Messrs. Pinkney, Cooke and Key, were ap- 
pointed commissioners on the* part of this State, to meet such 
commissioners as might be appointed on the part of Virginia, 
with power to adjust, by compacl between the two States, the 
western and southern limits of this State, and the dividing lines 
and boundaries between it and \ irginia; and also anj claim of 
either State to territory within the limits of the other : and in the 
event of agreement, the compact was to be reported totheLi 
lature for its confirmation. Delay still followed delay, Mr. Pink- 

(80) This delay mayinaomt measure be accounted for, by th< reservations 
of land made bj enable her to fulfil her engagements to the 

officers and soldiers of the Maryland line. 



(,1 THE GRANT AND TERRITORIAL LIMITS [Intro. 

ney having left the province, and Mr. Cooke having declined ac- 
ceptance; in 17U6, Charles Carroll of Carrollton, and J. T. 
Chase, Esqrs. were appointed in their stead. (81) Mr. Key re- 
moved from the State, and Messrs. Carroll and Chase declined 
acceptance, and thus the State was again left without commis- 
sioners until 1801, when by a resolution of that year, the power of 
appointment was given to the governor and council. Messrs. 
Duvall, McDowell and Nelson, were now appointed commission- 
ers, and a correspondence upon the subject took place between 
governors Mercer and Monroe. The result of it was, that a re- 
solution was passed by Virginia, authorising the appointment of 

(81) Mr. Cooke's letter of declension, which was, by the vote of the House 
of Delegates, directed to be recorded on its Journals, contains some interest- 
ing statements, in relation to the extent of territory dependent upon this con- 
troversy. Yet, although it purports to be founded upon an examination of 
the whole question, it contains some erroneous statements. In adverting to 
the exploration of the country by colonel Cresap, he states that Cresap, judg- 
ing more from appearances, than from any actual survey, reported in favour of 
the north branch, and that it was for some time afterwards supposed to be the 
first fountain. In this, he is entirely in error. Cresap was examined before the 
Council in 1753, and made an actual survey in 1771 : and on both occasions 
decided in favour of the south branch. Nor do our records show that he was exa- 
mined on this subject, or employed for this purpose at any other time : or that 
there ever was a period in the province, when the north branch was held to be 
the first fountain. Wherever the subject is alluded to, the contrary opinion is 
universally maintained. As this letter is valuable, not only on account of the 
lacts which it sets forth, but also because it contains the opinions of Mr. 
Cooke, who was a distinguished lawyer, as to the effect produced upon the 
claim of Maryland, by the prior occupancy and long continued possession 
under the Fairfax grant, it is here subjoined. 

To the Honorable the Senate and House of Representatives of Maryland: 
Gentlemen, — 

By a resolve of the Legislature, passed at the last session, William Pinkney 
and Philip Barton Key, Esquires, together with myself, were "appointed com- 
missioners on the part of this State to meet" such commissioners as might be 
appointed for the same purpose by the commonwealth of Virginia, to settle 
and adjust, by mutual compact between the two governments, the Western 
and Southern limits of this State, and the dividing lines and boundaries be- 
tween this State and the said commonwealth; and also to settle and adjust any 
claim of this State, on the said commonwealth, to territory within the limits 
of the other. 

In the execution of this trust, I have thought it my duty, not only to acquire 



Chap. I.] OF THE STATE OF MARYLAND. 65 

commissioners to meel those appointed on the part of Maryland; 
but limiting their powers tp the adjustment of the western line. 
\ i! mi: was unwilling even to enter into a discussion of her 
right to the territory between the two branches, whilst Maryland 
went upon the broad principle of referring the whole subject to 
the commissioners. The power of the Virginia commissioners 
being thus restricted, governor Mercer deemed it unnecessary to 

authentic information of the nature of the possessions held under the Virginia 
grants of land, within the limits claimed by this State, but also to examine 
carefully the laws of nature and nations, that it might be known, how far those 
laws would affect the claim of this State, before such claim was formally 
made, or prosecuted, in case it could not be otherwise adju>ted by an amica- 
ble settlement. 

The true boundary between this State, and the State of Virginia, depends 
on the " single" question, which is the first fountain of the river Potowmack ? 
A question which has hitherto rested upon opinion only, without any effectual 
step having been taken to ascertain the same. Many years ago, the late colo- 
nel Thomas Cresap was employed by the proprietor of Maryland to explore 
the country, and to report the facts that might lead to a decision on this sub- 
ject; but the country then being little known, and in the possession of sava- 
ges, it is probable he judged more from appearances, than from any actual 
mii wy of it; he reported in favour of the north branch, and for some time after, 
that was generally supposed to be the first fountain of the river Potowmack. 
Afterwards, .however, a different opinion prevailed, and the late proprietors of 
Maryland always claimed the land, and in some instances made grants there- 
of, lying between the north and south branches of that river. At length, a 
negotiation commenced between the proprietor of Maryland, and Lord Fair- 
fax, the then proprietor of that part of Virginia, respecting this subject; and 
by consent it would have been established, that the first fountain of Potow- 
mack was at the head of the south branch of that river, if the crown of Great 
Britain had not been interested in the question, and therefore it became ne- 
cessary to lay the circumstances then existing before the King and Council, 
and to obtain their approbation and concurrence before any effectual regula- 
tion could take place; and while matters were thus suspended, the revolution 
commenced, which anally deprived all parties 1 of their interest in the subject. 
During the war, the citizens of Virginia began to take up, and immediately 
after the peace to settle, the land between the north and south branches of 
l nnack ; and the whole of that country, 'containing 402,480 acres of 
and now is, occupied and claimed by the State of 
under grant thai State. But if upon 

a full investigation of ject, it shall be found that the first fountain of 

■I the north branch of that river, still it ih of 
9 



(>(> THE GRANT AND TERRITORIAL LIMITS [Intro. 

request a meeting of the commissioners: and the negotiation 
ended. (82) At December session, 1803, this correspondence 
and the acts and resolutions of the two states to which it related, 
were referred to the consideration of a committee of the House 
of Delegates of Maryland, by whom a report was made, recom- 
mending the running of a provisional boundary line (by agree- 
ment with Virginia,) to start from the extreme western source of 
the north branch, which should be held to be the boundary line 
of the two States, until further and definitive measures could be 
taken to ascertain the southern boundary. (83) This report was 
not acted upon : and the subject does not appear to have been 

essential consequence to this State, to have the real head or fountain of 
that branch of the river fixed and well ascertained. There are three springs, 
or small rivulets, that unite after running a small distance; and the posses- 
sions under the title of this State are at present confined to a meridian line 
drawn from the most southern of those springs, and the lands to the westward 
of that meridian line are taken up and held under grants issued by the 
State of Virginia, although both the other springs extend further to the 
westward, and one of them near three miles. Should this last mentioned 
spring be deemed the first fountain from whence a meridian line is to bo 
drawn for our western boundary, it will give a country, in addition to what 
the State now possesses, of three miles broad, and upwards of thirty miles 
in length. 

On reviewing the law of nature and nations, it will be found, that prior 
occupancy can give no title to Virginia in this instance; nor any length of 
time bar the claim of this State, if it is otherwise well-founded. Political 
laws in this, and in most other countries, regulate this subject among the 
citizens of their respective states; but it cannot be done between independent 
governments, unless by treaty. 

Should the legislature of this State persist in the wish to settle the bounds 
of this State and Virginia, in the manner proposed by the resolve of the last 
session, (and which has been delayed by the State of Virginia not having 
made any appointment of commissioners for that purpose,) it will be neces- 
sary to appoint another commissioner in the place of Mr. Pinkney, who is 
now absent on public business, and some other person instead of myself, as 
it will not be convenient to me to attend further to the subject. 

WILLIAM COOKE. 
14th November, 179G. 

(82) See the letter of governor Mercer of June 5th, 1802, and the executive 
communication of November, 1802, to the General Assembly in Council 
Chamber Records. 

(83) Journals of the House of Delegates. 



Chap. I.] OF THE STATE OF MARYLAND. G7 

revived until ls|(), when another resolution was passed similar 
to that of L80J, under which nothing was dune ; and the subject 
again slept until it was revived by .Maryland in the Act of Is Is, 
chap. 206. 

This State had now become wearied with her efforts to reclaim 
the territory south of the north branch : and hence this Act of 
JslS, in proposing to Virginia the appointment of commissioners, 
Maryland Act or agrees to adopt the most western source of the 
or the ncgniia north branch, as the point from which the western 
boundary shall start. At December session, 1821, 
of the Assembly of Virginia, an Act was passed, which purported 
to meet and reciprocate this proposition of the State of Maryland; 
but was, in fact, materially variant from it. (84) The Virginia Act 
did in fact beg the whole question, and left nothing open for ne- 
gotiation. The Act itself undertook to determine the point from 
which the line should start, and left nothing to the commission- 
ers but the power of locating it in conformity to its instructions. 
They were specially instructed to commence the western boun- 
dary at a stone planted by Lord Fairfax on the head waters of the 
Potomac: and thus they were tied down to the old adjustment, 
between Fairfax and the crown. The Virginia Act was therefore 
entirely different from that of Maryland, which directed the com- 
missioners to begin at the most western source of the north 
branch, be that where it might: and being dissimilar, it did not 
justify the appointment of commissioners on the part of Man land. 
Our Act of L818 expresslj directed, thai the appointment, on the 
part of this State, Bhould be made only after Virginia had embra- 
ced its propositions by the passage of a similar act; and no Act 
could be considi red similar, which did not confide to their com- 
missioners the -nine powers of adjustment, and adopt the saute 
basis of settlement. This was, however, overlooked by the execu- 
tive of Maryland: and commissioners were appointed on the 
part of both Stair-, who assembled on the head waters of the 
north branch in the summer of 1824. (85) Upon the instant of 

(84) Art- of A \ i ■ ii i at December let uon, 1 321, chap. I Uh 

181 i 
■ I The com who acted on thi on tb< part ol Mary- 

land, were Ez Iciel Chambei ind (ami B Esquires Cnancelloi ' 



68 THE GRANT AND TERRITORIAL LIMITS [Intro. 

their assemblage, it was discovered that the positive instructions 
to the Virginia commissioners would operate as a bar to all fur- 
ther proceedings. The Maryland commissioners came instruct- 
ed to locate the western line from the most western source of 
that branch, whilst those on the part of Virginia were limited to 
Fairfax's location, without regard to the inquiry : "whether it teas 
or was not so located." Fairfax's stone is not in fact planted at 
the extreme western source: and even had it been so situate, it 
was scarcely consistent with the rights and dignity of Maryland 
to have entered into an adjustment with commissioners who were 
thus restricted without regard to the question of right. Maryland 
having by her Act offered to relinquish all claim to the territory 
south of the north branch, it was not to be expected after this 
concession, that she should adopt as the source of that branch, a 
point determined as such, by her interested adversaries, during 
the progress of the controversy. The spirit of amity and conces- 
sion, which had characterised all her proceedings in her repeated 
efforts to close this controversy, had been met at every step, by 
one of obstinate adherence, on the part of Virginia, to the full 
extent of her pretended claims: and it did not become her digni- 
ty as a State, to submit herself implicitly to any terms which the 
latter might dictate. Her commissioners therefore properly in- 
sisted, that the whole question, as to the true source of the north 
branch, should be thrown open for investigation; and this being 
declined, the negotiation ended. 

So rests the controversy even to this day: and the proffer of 
Maryland to confine herself to the north branch, as contained in 
her Act of L818, being thus rejected by Virginia, she is remitted 
Present policy of to ner original rights. Hitherto the course of this 
Maryland. State has never contemplated aught but an amicable 

adjustment: and she has already made every advance towards 
this, except that of unqualified submission to the demands of 
Viro-inia. Every effort has failed : and the inhabitants of our 
western borders begin to feel more sensibly every day, the con- 
son, who was joined with them in the commission, died when on his journey 
to the place of assemblage, to the deep regret of his fellow-citizens, amongst 
whom he was conspicuous for his abilities as a lawyer, and his worth as a 
man. 



Chap. I.] OF THE STATE OF MARYLAND. 69 

sequences of this protracted contest. I« is a matter of reproach 
to the two State,, that this boundary so extensive and important, 
should be unsettled to this day,; and to Maryland it especially 
belongs to redeem herself from this reproach, by adopting on the 
instant some decisive measures, to bring about its adjustment. 
If she is prepared to surrender all her claims, and to. adopt the 
location of Virginia, her border citizens -nay well say : "If U were 
done when 'tis dme, then it were well it were done quickly. II, 
on the other hand, she intends no such surrender, it is full tune to 
rise in vindication of her rights. In the progress of tins contest, 
the conduct of Virginia towards her, has not been characterised 
by that onerous and liberal spirit which has been so conspicuous 
in her other transactions. Our citizens would deeply regret the 
necessity of an adversary proceeding against a sister State, which 
has held so high a place in our affections: yet in reviewing the 
conduct of our State, they will find no cause for censure. As to 
the chartered extent of Maryland, there can be little room for 
doubt " The first fountain of the Potomac" is evidently a de- 
scriptive term intended to designate the most westerly source, 
and applies to the south branch, the source of which lies con- 
siderably west of that of the north branch. The extent of terri- 
tory lying between the two branches, is estimated at half a mil- 
lion of acres, including some of the most fertile lands of Virginia. 
In the event of an adversary proceeding, the claims of Maryland 
will of course extend to her chartered limits; and the sovereign- 
ty over this extensive country ; will be the high prize for the vic- 
tor The citizens of our sister State, will perhaps smile at pre- 
tentions so extensive: yet that they were once well founded ran 
scarcely be doubted, and if so, it will be difficult to show in what 
way they have been lost. If this he admitted, Virginia can resl 
her Claims only upon prior occupancy 1 and long continued posses- 
Sion; and these will avail her hut little in such a case as the 



-ent. 



prefer— 

By. .<ome the opinion is maintained, that as between inde- 
pendent states or nations, one cannol acquire a title to the do- 
main f the other merel) by prior occupancy. In 
pmeatiJcb*. the letter ofMr. Cooke above given, i! will be Been 
that he adopts thi doctrine, and asserts broadly, "thai if the 
claim of the State be well founded ,.. its orig lapse of time 



70 THE GRANT AND TERRITORIAL LIMITS [Intro. 

nor continuance of possession on the part of Virginia can bar 
that claim." The contrary opinion is maintained by Vattel : and 
is probably the correct doctrine as there explained and restricted. 
(86) The doctrine of prescription can only apply to a case of 
clear and unequivocal abandonment of possession, on the one part, 
sustained by proof of long, undisputed and uninterrupted adversary 
possession by the other: and this has never been the character of the 
Virginia possession. The claim was disputed from its very origin, 
and the territory was occupied under circumstances from which no 
inference of acquiescence, on the part of the proprietary of Mary- 
land, can fairly be drawn. From the year 1753 to the revolution, 
the proprietary and his government continued to assert the Mary- 
land claim, and were restrained from making grants of the disputed 
territory, only through apprehension of the interference of the 
crown, and because of the adjustment between the crown and 
Lord Fairfax. And if any doubts could arise from the possession 
of Fairfax, anterior to the revolution, they are all removed by the 
constitution of Virginia adopted in 1776, which in its 21st Arti- 
cle, after making certain reservations as to the navigation and use 
of the Potomac and Pocomoke, &c. expressly cedes and con- 
firms to the State of Maryland: "all the territory contained with- 
in its charter, with all the rights of property, jurisdiction and go- 
vernment, and all other rights whatsoever, which may at any time 
heretofore have been claimed by Virgi7iia." Thus then at the 
revolution, by the express concession of the State of Virginia, 
the claims of Maryland to her charter limits existed in their full 
force ; and are sustained by an express surrender of all counter 
claims which Virginia might have. The reservations made by 
her, have all been gratified by the compact of 1785 : and the 
claims of Maryland, so far as they rest upon her charter, are there- 
fore doubly armed. From that period to the present, it will be 
apparent, from the review of the transactions of the two States 
already presented, that the claim of Maryland has never been re- 
laxed, except by an offer to compromise, which was not accepted, 
and therefore cannot in any wise afreet her right: and that there 
is nothing in the character of the Virginia possession, from which 
an abandonment of this claim can reasonably be presumed. 

(86) Vattel, Bk. 2d, chap. 11th, sec. 147 to 151. 



Chap. I.] OF THE STATE OF MARYLAND. 71 

If, then, her rights under the charter retain their original \ igour, 
unimpaired by the lapse of time or the occupancy "I Virginia, th'e 
Remedies open Constitution of the United States appears to present 
t0 remedies, By which the extenl of those rights can be 

readily determined. The claim of Maryland, as the successor to 
the proprietary ri^lit-^, extends both to the right of soil and the ju- 
risdiction: ami it seems to be now well settled, that where there 
is a controversy between States involving the right of soil, the 
Supreme Court of the United States has original jurisdiction over 
it, and one State may in that court enforce such a right against 
another State of the Union. (87) It has been doubted whether upon 
such a right as that of mere sovereignty or jurisdiction, a State 
could proceed at law : but even in such a ease, it has been held 
that there is at least an equitable remedy by bill praying to be quiet- 
ed as to the disputed boundaries. (88) Besides this direct mode 
of bringing the question to an issue, there is also an indirect mode 
of producing a decision of it, which would eventually be equally 
as efficacious. It is but necessary for the State of Maryland to 
make a grant within the disputed territory, upon which a suit 
could immediately be instituted against those claiming it under 
a Virginia grant ; and the question of superior right to grant 
wotdd at once come up. It being then a case of conflicting 
claims under grants of different States, it might be at once transla- 
ted to the proper Circuit Court of the United States; and thence 
(if of sufficient value,) to the Supreme Court for final determina- 
tion. (89) These are the modes of proceeding open to Maryland, 
and if she still retains, and intends to adhere to her original claim, 
she should be prompt in the prosecution of it. All further hopes 
of obtaining it by concession are at an end: and whatevei course 
she may resolve to adopt, should be at once determined upon. 
What the boundary line may be, is not a matter of such moment 
to her citizens, as thai it should lie definite and undisputed. In 
any issue of the contest, it would be the duty of Maryland to con- 
firm all the anterior grants from the proprietaries of the neck. 

No attempt would he made to disturb titles so derived: and the 

(87) 3d Dallas, 412. 4th Dallas, 3. 

(88) Same. 

(89) Constitution of tin Doited Mates, Article 3d, section 3d, and V 
September 24th, 178 r J, section 12th. 



72 THE GRANT AND TERRITORIAL LIMITS [Intro. 

contest would be mainly for the sovereignty of the territory. 
Thus respecting and protecting private rights, her claim would 
be stripped of all its harshness: and, if successful, whilst it en- 
larged and enriched her territory, would be a monument of her 
justice. 



CHAPTER II. 

OF THE CIVIL DIVISIONS OF THE STATE OF MARYLAND. 

An Enquiry into the territorial iimits, within which the powers 
of the government of Maryland may be exercised, enters neces- 
sarily into the consideration of the extent and exercise of those 
powers. Hence the details of the preceding chapter were not 
only necessary (as a part of the history of the province of 
Maryland) to illustrate the causes of its grant, the circumstan- 
ces under which that grant was made, and the origin, progress 
and issue of the several contests, which have abridged it to its 
present limits ; but also to exhibit an accurate view of those 
abridged limits, to which the powers of government we are 
about to consider, must be confined in their exercise. The histo- 
ry of these controversies is wrapped up in musty records, to 
which but few of our citizens can have access, and which are in 
general too uninviting, to tempt even curiosity to explore that 
history through such channels. Yet the reader would look 
in vain elsewhere, for a knowledge of the present limits of the 
State, or of the causes of their variance from the calls of the 
charter. 

The view, which has been taken, would suffice for the conside- 
ration of those powers, which may be peculiarly called " Slate 
Powers," as being undivided and extended over the whole State, 
by the act of the same officer. These, however, form but a small 
part of the power of the State government. In order to the proper 
exercise of a great portion of it, it has been found extremely 
convenient in some instances, and absolutely necessary in 
other.-, to subdivide it, not only with reference to the objects over 
which it is to be exercised, but also to the extent of territory. It 
is not possible for one man to exercise, in person, the entire pow- 
ers of government ovej a country of any considerable extent, or 
to exercise, in person, any one entire branch of that powrr, 
where its objects are numerous, and call for the frequent and in- 
stant application ol it. Noi is il the policy of a rppublican go- 

9 



74 THE CIVIL DIVISIONS [rntro. 

vernment, to weaken the responsibility of those, who actually ex- 
ercise its powers, by interposing between them and the govern- 
ment, and as their principals, great state officers, as deposita- 
ries of its powers, or entire branches of them, who, by their will and 
discretion, prescribe and regulate the subdivisions of power, and 
control the agent. Such subdivisions should be made by the people 
themselves; and the officers, clothed with such fractions of State 
power, should come directly from, and be directly responsible to the 
people themselves, and not to one great state officer. Hence, in 
Maryland, not only are there numerous subdivisions of State pow- 
er with reference to its distinct objects, but nearly every branch of 
it is broken up into similar county or district powers correspond- 
ing, except as to the territory over which they are to be exercised. 
The only subdivisions which are connected with the civil and 
political history of the state, are those of 

1. Shores. 

2. Counties. 

3. Districts. 

The subdivision of counties into hundreds, in this State, is 
coeval with the existence of counties ; and, indeed, during the 
first year of the colony, each hundred of the county had its dis- 
tinct representation in the legislature, and in this respect bore 
the same relation to its county, which the counties now do to 
the State. But they are now of little, if any, utility; and the 
very traces of their limits have been obliterated, and are unknown 
in many of the counties. They have, in fact, in a great degree, 
ceased to be subdivisions, because the subdivisions of power, for 
which they were created, are changed, although there are yet a 
few cases arising under our old statutes, in which it is necessary 
to recur to them. In most of their purposes, they have, however, 
been superseded by the election districts, which have taken their 
place even as to constables, who were so peculiarly the officers 
of the hundred, but are now appointed for election districts. 

(1) Of the Shores. 

The subdivision of shores arises from the intersection of the 
State by the Chesapeake bay, which divides it into eastern and 
western sections, respectively called, " the Eastern and Western 
Shores of the State." This natural division of the State has be- 



Chap. II. ] OF Tllil STATE OF M \KYI.A\D. 7") 

come .1 civil division from adventitious circumstances, which 
have principally passed away, but have left the division behind 
them, in main cases to answer no purpose, but to foster the un- 
reasonable jealousies, which, in some measure, gave it birth, and 
which, in its turn, it sustains, and is likely to perpetuate. As a 
civil division, it has been established by our Constitution upon 
such a basis, and with such securities for its continuance, that it 
will probably never cease to exist but with the State ; and such 
has been its tendency, whilst thus sanctioned and sustained, to 
create a difference in feeling, and a supposed difference in inter- 
est, that at present, by the force of law or custom, it enters into 
every state election. In its origin, it was the creature of con- 
venience. It was introduced for, and doubtless accomplished, 
useful purposes. The settlements on the two shores were remote 
from each other. The facilities of intercourse, which we now 
enjoy, did not then exist; and the. location of state offices, on 
both shores, was made for the accommodation of the settler. 
Vet, (as the reader will hereafter perceive, in examining the his- 
tory of the state offices as they existed before the revolution,) this 
division was extended to but few of them. It was not then known 
to the law, in the constitution of either branch of the legislature. 
It did not then exist in relation to the land office, or the institu- 
tions connected with it. as it does at this day. It was not then 
respected by the proprietary, in the selection of his governor and 
council, as it is by imperative custom at this day. Then it w as 
not introduced, or used, as it has been since the adoption of our 
present constitution, us a mere preserver of the balance of politi- 
cal poicer better en tin- hoo shores; and herein is the distinction 
between this civil division as it now exists, and as it existed before 
the revolution. Then its purposes were Legitimate ; and its ob- 
ject, as to the offices to which it applied, was to subserve the con- 
venience of the citizen. Now it is a mere check to preserve the 
balance of power between the two Bhor :S, which, as to most of the 
officer, ii i,,,t only not required b) ;i regard to the convenience of 
person 1 - transacting business through them, hut i- even inconsis- 
tent with it, ami i- i mere element of strife, which tends to merge 
our regard for onr common state and its interests in mere shore 
jealou*ifs. Vet by custom m man] cases, and by law in others, 
the division has become vprv prominent, and it is ther«fore B6C6S- 



76 THE CIVIL DIVISIONS [Intro. 

sary to notice the cases to which it is so extended. Where it 
exists by custom against or without law, it can scarcely be regard- 
ed as an authoritative distinction; yet that custom has become 
so inveterate, that the necessary precautions for its preservation 
are always observed; as, for instance, in elections by the legisla- 
ture, where some order preliminary to the election, is usually 
adopted, for the purpose of prescribing and regulating such elec- 
tions in conformity to the custom. This custom is also worthy 
of consideration, as a striking illustration of the tendency of our 
constitutional and other institutions as to the two shores, and of 
the spirit which they are calculated to engender. By a custom 
which is now never departed from, except in sudden revolutions 
of political power in the State, the Governor, who is elected an- 
nually, and is eligible only for three successive years, is taken al- 
ternately from the two shores. By a similar custom, his council, 
which consists of five persons, is always composed of two resi- 
dents of the Eastern, and three residents of the Western Shore. 
This is followed up even in the election of officers of the House 
of Delegates. Some regard is paid to it in the choice of speaker, 
although it has less influence upon this election, than upon that 
of any other officer of the House. If the clerk of the House be 
taken from one shore, it is the practice to take the reading clerk 
from the other; and in the election even of committee clerks, it 
is a practice equally as inveterate to elect tvto from the eastern 
and three from the Western Shore. 

Such being the customary respect paid to this subdivision, we 
are now to consider the purposes for which it is established as a 
civil division by law. 

In the election of Senators to represent us in the Senate of the 
United States, our state laws require that one of the senators shall 
always be an inhabitant of the Eastern, and the other of the Wes- 
tern Shore. (1) This is a restriction imposed by state laws, which 
it is proper to respect, and which will probably always be respected. 
Yet state laws cannot attach this to the office of senator of the 
United States, as a necessary qualification. The Constitution of 
the United States requires only that the senator should be a resi- 
dent of the state for which he is chosen; and it gives the senate 

(1) Act of 1809, chap. 22, November session. 



Chap. II] OF THE STATE OF MARYLAND. i \ 

the exclusive power of judging of the qualifications ofits members. 
The Constitution of the United States can alone prescribe imper- 
ative quahfications; and the only power delegated to the states, 
is that of prescribing the time, place and manner of holding the 
election under and with respect to the qualifications so prescrib- 
ed; and even as to the time and manner of holding them, there is 
a power reserved to congress under that constitution to prescribe 
them by law, and so to alter or repeal all inconsistent state regula- 
tions. (2) The state governments have no power to superinduce 
any new qualification for this office; and the restriction of the 
act of 1809, being a self imposed restriction, attaching a qualifi- 
cation not known to the Constitution of the United States, although 
entitled to all respect, is not so authoritative that the neglect to 
observe it would invalidate the election. 

In the election of State Senators, our constitution requires, 
that of the fifteen members which compose it, nine shall be chosen 
from the Western, and six from the Eastern Shore. (3) 

In the organization of the Court of Appeals, the two shores also 
constitute two judicial districts; for although there be but one 
Court of Appeals, yet that court is required to hold distinct ses- 
sions on each shore, for the exercise of the appellate jurisdiction 
of that shore, and there is a distinct office and clerk appurtenant 
to this court on each shore. (4) 

So, also, there is a distinct organization of the land office for 
each' shore, carrying with it in its train the offices of judge, 
register of the land olfice, and examiner. (5) 

There is also a treasury office for each shore, established by the 
constitution, and a distinct treasurer for each. (6) 

As we shall have occasion, hereafter, to enquire into the ori- 
gin and constitution of these several offices, .t is sufficient for our 
present purposes to notice their existence, as predicated upon 
this subdivision. The brief view which has been given of the 

(2) Constitution of the United States, Article 1st, section 4th. 

(3) Constitution of Maryland, Articles 15 and 1G. 

(4) Constitution of Maryland, as amended by the Act of 1804, chap. 55, 
and carried into effect by the Acts of 1815, chap. 215, and 1816, chap. 151. 

(5) Constitution of Maryland, Article 51, and Acts of November, 1781, 
chap. 20, section 3d, and 1795, chap. 61 sections 3d, and 5th. 

(6) Constitution of Maryland, Art. 13th. 



78 THE CIVIL DIVISIONS [Intro. 

extent to which this natural division of the State exists as a civil 
division, will at once show the truth of the remark: "That 
there is scarcely any State office, into the appointments to which 
it does not enter, and that at present our State is divided into Uoo 
distinct sections, which are regarded as having as distinct portions 
of the political power of the State, as if they were distinct mem- 
bers of a mere confederate government." These institutions 
thus impart to our state the character of a confederacy of the 
two shores; and the natural result of their distinct organization 
as qnasi-confederates, is uncontrollable jealousy between them, in 
every question into which a supposed difference of interest may 
enter. The very fact that they are thus separated, begets a be- 
lief of the existence of distinct interests in many cases where they 
do not exist, as has been seen in many questions agitated in this 
State. Its tendency has been to induce us, each to regard the other, 
as strangers and aliens in our own land, and to cripple our state 
energies on every occasion which calls for their full exertion. Our 
citizens see, feel, and deplore this, yet they continue to give fresh 
vigour to this feeling, by extending it to every state operation. It 
has become manifest to all, that this division of state offices exists 
in many cases, where it is not only entirely unnecessary, but even 
prejudicial. This distinction may be worthy of preservation in 
the distribution of elementary political power, as in the organiza- 
tion of the legislature, and in the constitution of the supreme ex- 
ecutive power; yet it cannot be denied, that as to many of the 
minor offices, it is a mere sacrifice of convenience and public 
economy at the shrine of shore jealousy. In passing from the 
consideration of this civil division, it must be remarked, that, 
wherever it is established by the constitution, every change of it, 
or of any part of the constitution which relates particularly to 
the Eastern Shore, must be made not only as other constitutional 
amendments, by a bill passed at one session of the General As- 
sembly, and, after publication to the people, confirmed at the next 
session of the Assembly after a new election; but such change 
must also be concurred in at both sessions, by two thirds of all 
the members of each house of Assembly. (7) 

(7) Constitution of Maryland, Article 59. 



Chap. II.] OF THE STATE OF MARYLAND. 79 

(2) Of the Counties. 

The subdivisions called "Counties," as well as those of hun- 
dreds, were instituted in England about the commencement of 
the ninth century, by the illustrious king Alfred: and with their 
train of correspondent officers, such as sheriffs, coroners, justices, 
and constables, were borrowed by the colonists of Maryland from 
the institutions of the mother country. That of hundreds has in 
a great degree ceased to exist, but the counties still remain as 
the principal civil divisions of the State; for even where divi- 
sions of a more extensive kind have been formed, they have been 
generally formed by the combination of counties. It is not, how- 
ever sufficient to refer to these, as existing civil divisions. 
Many of them were erected by orders in council, to which we 
must refer, not only for their origin and original extent, but in 
some instances even for their present limits. Of these orders, 
some are lost, and others are locked up in unpublished records. 
And even where they are determined by acts of Assembly, these 
are scattered over such a mass of legislation, that it is difficult to 
collect them ; and the sources whence they are to be collected are 
accessible to but few. Hence there are few subjects, about which 
the people of this State are so ignorant, as in reference to the 
manner in which, and the time at which the counties of the State 
were erected, their original extent, and their gradual contraction 
or extension to their present limits. A striking illustration of 
this was furnished in the recent contests before the legislature, 
about the true location of the boundary line between Anne Arun- 
del and Calvert counties. These counties were erected between 
the years 1650 and 1660, and the definition of their common boun- 
dary had been suffered to rest upon the vague and indefinite 
expressions of orders in council and acts of that period, until, at 
length, in 1822-23, when it was taken up for final adjustment, it 
had become unintelligible in its descriptive terms: so that the 
legislature found it necessary to establish a new line, as a line 
of compromise, running between the lines severally contended 
for by these counties. We will, therefore, briefly notice the 
origin and limits of the several counties, a- serving not onl) to 
prescribe the extent of mere county powers, bul also, in some 
degree, to illustrate the progress of the settlement! of ih< Si 



80 THE CIVIL DIVISIONS [Intro 

The State of Maryland is divided into nineteen counties, of 
which eight are situated on the Eastern, and eleven on the 
Western Shore. Those on the Eastern Shore are Cecil, Kent, 
Queen Anne's, Talbot, Caroline, Dorchester, Somerset and Wor- 
cester; and those on the Western, are Allegany, Washington, 
Frederick, Harford, Baltimore, Montgomery, Anne Arundel, 
Prince George's, Calvert, Charles and St. Mary's, of which we 
will speak in the order of their origin. 

The first settlements within the State, which were made under 
the authority of the proprietary, were at and near St. Mary's, 
and were made in 1633—34. At that time, as has been remarked 
in the preceding chapter, there was a small settlement on Kent 
Island, which had been there planted by Claybome, and which, 
after Clayborne's rebellion, was reduced to submission, and 
became the nucleus of the Eastern Shore settlements. This 
settlement, and that of St. Mary's, were the only distinct and 
recognized settlements of the province, for some years after its 
colonization commenced. At that period, St. Mary's was the 
name of a settlement, rather than of a county; and as the settle- 
ments around it progressed, they were erected into hundreds, and 
became constituent parts of the county or settlement. At length, 
in 1650, a new county was erected in the northern part of the 
Western Shore ; and it seems, also, that by an order in council 
of that year, a part of the territory on the south side of the 
Patuxent river, was erected into a county called Charles. (S) 
In 1654, this last mentioned order in council, was repealed by 
another order in council of July 3d, 1654, and a new county 
erected, under the name of Calvert, which was bounded on the 
north by a creek, on the west side of Chesapeake bay, called 
Herring bay, and on the south side by Pinehill river or creek to 
the head, and through the woods to the head of Patuxent river, 
which constitute, says that order, the northern bounds of St. 
Mary's. (9) In the ensuing October, and after the government 
of the province had been taken out of the hands of Stone, the 
proprietary's governor, and the rule of the province had been 
assumed by Cromwell's commissioners, an ordinance was passed 

(8) Acts of 1650, chap. 8, and Land Records, Liber 1, folio 615. 

(9) Order in Council of July 3d, 165 1 ; in Land Records, Liber 1, folio 615. 



Chap. II.] OF THE STATE OF MARYLAND. 81 

by the authority of these commissioners, which declared that 
''all the lands extending from Marsh's creek down the hay, 
including all the lauds rjfe the south side of the bay and cliffs, 

with the north and south sides of Patuxent river, shall consti- 
tute a county, to be called (as it is, says the order) Patuxent 
county." (10) In 1658, upon the restoration of the government 
to the proprietary, all the acts and orders of Cromwell's commis- 
sioners were annulled at one fell swoop, and with them, of 
course, this ordinance of 5th October, 1051; by which repeal, the 
boundaries prescribed by the order in council of July 3d, Hi") I, 
appear to have been restored. (11) In the year of this restora- 
tion, a new county was erected, under the Dame of ''Charles," 
which was separated from St. Mary's by the Wicomico river, and 
extended thence up the Potomac river to the uttermost settle- 
ments, and thence to the head of Wicomico. (12) St. Mary's 
having always been the extreme southern county of the Western 
Shore, it was therefore always bounded on the east by the bay, 
and on the south by the bay and the Potomac. Thus the boun- 
daries of St. Mary's continued to be defined, until 1696, when 
they were definitively and finally settled by the act of May ses- 
sion, L695, chap. 13, confirmed and made perpetual by the act 
of 1704, chap. 92, which declares 'thai St. Mary's county shall 
begin at Point Look Out. and extend u/t Pbtowmae river to the lower 
si i/r of Bird's creek, and so over />>/ a straight line drawn from the 
load of the main bromeh of the said Bird's Creek, to tin load of In- 
dian creek in Patuxent river, including all that land lying between 

PatttXent and Potomac rivers, from the loiccr part of the said tiro 
links and branches Of Hint's and hnlioii's creek hi/ the line afurc- 

\aid. and by Point Look Out" 

Population of St. Man's iii 1791, I"),-")!! — iii 1801, 13,689 — in 
Ml H7DI— in 1821, 19,974. 

(10) Ordinance <.f 5th October, 1654, in Land R< cords, Libej .', folio 123 
(11 eneral repealing order of 1 658 inCourtol \ppeals records, 

Liber 8. folio '.'•'<■'■. which wai in din 1 1 conflict with tl le treaty, by which the 

province wa I nw< ll'a commissi r- t i FendaH, the | 

prietarj "- governor, 
f 19) Order of 10th Maj 1658, in Liber 8. Court ol Appeals Records and 

Cotinnl Chamber Records, Liber H II, page 19 
II 



82 THE CIVIL DIVISIONS [Intro. 

Kent County, on the Eastern Shore, seems to have borne the 
same relation to the counties of that shore, which St. Mary's did 
to those of the Western. It was the nucleus around which the 
other counties have been formed. We have seen that the settle- 
ments made by Clayborne, on Kent Island, were anterior to those 
of the proprietary; (13) and when these settlements had passed 
under the dominion of the proprietary, Kent and St. Mary's re- 
mained the only civil divisions of the province, until 1G50, the 
Kent settlement being a commander ate, and placed under the 
rule of an officer called the commander of the Isle of Kent. Of 
the nature and character of this office, and the character thereby 
imparted to the settlement subject to it, we shall have occasion 
to speak hereafter; and, for the present, it will be sufficient to re- 
mark, that it was a civil division analagous to that of a county. 
About the year 1650, and between that and the year 1660, seve- 
ral new counties were erected on the Western Shore ; but on the 
Eastern Shore, the first distinct civil division, after that of Kent 
Island, was Talbot, which was erected about the year 1661, out of 
the territory south of Kent Island. After this were created, 
Somerset in 1666, Cecil in 1674, Dorchester in or about 1669, 
Queen Anne's in 1706, Worcester in 1742, and Caroline in 
1773. Settlements were made on the southern part of the Eas- 
tern Shore as early as 1661, under Elzey and others, of which we 
have already treated; (14) but they were, in the first instance, re- 
garded as settlements or colonics, subject to the jurisdiction of 
the province at large, and not as distinct civil divisions, until 
Somerset county was erected. The subdivision called the Isle of 
Kent, being in its origin, as was St. Mary's, the name of an un- 
defined settlement, the county of Kent received its definite limits 
from the erection of other counties around it. I have not disco- 
vered the order, or act, by which Talbot was erected out of the 
territory lying south of Kent Island settlement ; but the legis- 
lative records first show its existence in 1661. On the north, 
Cecil county was erected in 1674; and the proclamation erecting 
it, extended it from the mouth of the Susquehanna river, and 
thence down the eastern side of the bay to Swan Point, thence to 

(13) See Supra fi. 

(14) Supra 19. 



Chap. II] OF THE STATE OF MARYLAND. 83 

Hell Point, and thence up Chester river to the head thereof. (13) 
In 1(505, Kent Island was attached to Talbot county; and at 
length in 1706, when Queen Anne's was erected, Kent received 
precise and definite limits. (16) The bounds assigned were, "on 
the north Sassafras river from the bay to the south end of the Long 
Horse bridge, lying over the head of the said river, and thence a 
straight line, drawn east and by south, to the exterior bounds of the 
province; on the cast by the lines of the province, until they intersect the 
southern line ; on the south, a line beginning on the bay with Chester 
river, and running with the same to a branch called Sewell's branch, 
and with that to its head, and thence by a due east line to the eas- 
tern bounds of the province ; — on the west, the bay." Its eastern 
limits being dependent upon the eastern limits of the province, 
were of course not adjusted until the close of the controversy be- 
tween the proprietaries of Maryland and Pennsylvania, of which 
we have already so fully treated. The other lines are the same; and 
the adjustment with the Penns having thrown the peninsular line 
which divides Maryland from Delaware to the centre of the pen- 
insula, so as to cross the heads both of Sassafras and Chester, it 
has given to this county a natural boundary on all sides except 
the east, its bounds now being the Sassafras river on the north, 
the bay on the east, Chester river on the south, and the eastern 
line of the province from Chester to Sassafras on the east. 

Population of Kent in 1791, 12,888,— in 1801, 11,774,— in 
1-11, 11,450,— in 1821, 11,453. 

Anne Arundel County was erected in 1650. In its origin, 
it was a settlement called Providence; and therefore the act of 
1650, chap. 8th, erecting it, simply enacts, "that all that part of 
the province over against the Isle of Kent, called Providence by 
the inhabitants thereof, shall constitute a county to be called Anne 
Arundel." In 1654, Calvert county was created out of the ter- 
ritory south of Anne Arundel ; and by an ordinance of Crom- 
well's commissioners, the name of Providence was substituted for 
that of Aum- Arundel, whilst from that period until 1658, and whilst 
the province was under the government of die Protector's com- 
missioners, Calvert bore the name of Patuxent. Upon the resto- 

< 15) Council Chimin i lie cords, Ubsc K U. 3D. 
Acts of 1695, eb»p. IS, sad 170C, chap. 3 



84 THE CIVIL DIVISIONS [Intro. 

ration of the proprietary's government, and the general repeal of 
the ordinances passed during the usurpation, the original names 
of both were restored. By the order in council of July 3d, 1654, 
first erecting Calvert county, the bounds between it and Anne 
Arundel, were declared to be "a creek on the western side of the 
bay, called Herring creek, and thence through the woods to the head 
of Patuxent river. The subsequent ordinance of Cromwell's 
commissioners passed in October, 1G54, declared, that Patuxent 
(which name Calvert had then received) should be "a county ex- 
tending from the south side of Marsh's or Oyster creek, including 
all the lands on the south side of the bay, and the cliffs, with the 
north and south side of the Patuxent river, and shall be called, as it 
is, Patuxent county." At the same time, an ordinance was also 
passed, declaring that Anne Arundel county shall be called 
Providence, and that its bounds shall be Herring creek, including 
all the plantations and lands with the bounds of Patuxent county, 
i.e. to a creek called Marsh's or Oyster creek. (17) Upon the 
restoration of the proprietary government, an order in council 
was immediately passed, (which, by the bye, appears to be in- 
compatible with the treaty under which the government was sur- 
rendered,) declaring void all the acts and orders passed during 
the defection from the proprietary government, and directing, in 
true vandal spirit, that they be razed and torn from the records. 
(18) These ordinances, thus changing the name and the bounds 
of the two counties, appear to have fallen within the range of 
this sweeping order, which therefore restored the original name 
and bounds. Thus the question of the boundary rested (except 
as affected by the proclamation of Gth June, 1674, alluded to in 
note (20) infra) until 1/77, when it appears to have been held, 
by the House of Delegates, in deciding upon the eligibility of a 
Mr. Mackall, that the creek, at present called Fishing creek, 
was the reputed and long received boundary between the two 
counties. (19) It was again agitated in 1809; and finally in 

("17) These several orders and ordinances may be seen in Land Records, 
Liber 1, folio 615, and Liber 2, folios 423 and 428. 

(18) Court of Appeals Records, Liber S. 378. 

(19) At October session, 1777, an act of Assembly was passed, appointing 
commissioners to ascertain and establish the divisional line between these 
counties, who were to report their proceedings to the next General Assembly 



Chap. II.] OF THE STATE OF MARYLAND. 88 

1822, an act was passed, appointing commissioners to ascertain 
and establish the divisional line. In 1823, an aet for its definitive 
ascertainment was passed, which directed thai the commission" 
ers, appointed by the act of 1822, should locate it according to 
given metes designated on the plot returned by them, beginning 
the line at the mouth of a creek called " .Muddy or Red Lion's 
creek-,' 1 the same being a line of compromise between the con- 
flicting claims of the two counties. And in 1824, another act 
was passed, defining this creek to be one known by the name of 
South or Middh creek. (20) Thus terminated a controversy, the 
full detail of which is not necessary lor our present purposes. 
The claim of Calvert embraced an extent of territory more mate- 
rial to her by its gain, with her present contracted limits, than 
the loss of it would have been injurious to the extensive count) 
of Anne Arundel. It appears from the report of a committee of 
the Legislature in 18*24, that her claim did not extend to Herring 
creek, the boundary assigned by the order of July, 1054; but 
that Marsh's creek being the conceded boundary, the dispute 
was as to the true location of that creek ; and that Calvert, on 
the one hand, contended that it was a Creek falling into Herriim- 
creek near its mouth, and extending- westwardly with that creek 
to one of the heads of Lyon's creek, and thence with Lyon's 
creek to the Patuxent; whilst, on the other hand, it was held by 
Anne Arundel that it was the creek now called Fishing creek. 
Whatever may be the fact, as to the long continued and universal 
admission and reception of Marsh's creek as the true boundary, 
and whatever effect such reception of it might have upon the 
question of right, there appears to have been a mistake in the 
supposition that the order of. Inly. 1654, was wholly inoperative. 
The act of Assembly, alluded to in that report as having repeal- 

for it< ratification : but no adjustment of the boundaries was made under it. 
See act of October, 1777, chap. 7th. 

(20) Acts oi L822, chap 109, 1823, chap. 183, and 1824, chap. 193. In tin- 
progress of this controversy, no notice appears to have been taken of the pro- 
clamation of Gth June-, 1 674, which declares : That the north side of Patuxenl 
river, beginning at north tide >>f Lyon's creek, shall be added to Anno Arundel 
county : The effect of this waa _ to make Lyon's creek the limit of the southern 
extent of Anne Arundel county. Bee this proclamation in Council Chamber 
Liber Records, Kit, Council Proceedings, 30. 



86 THE CIVIL DIVISIONS [Intro. 

ed this order, was the ordinance of October, 1651, above alluded 
to, which was itself repealed in 1658. However, the question is 
now at rest; and the southern boundary of Anne Arundel, sepa- 
rating it from Calvert, is the line above described, running to the 
Patuxent. The Patuxent, its original boundary, still separates it 
on the west from Prince George's and Montgomery counties. 
On the north, its bounds were not definitive until the creation of 
Baltimore county in 1659, out of the territory lying north of the 
Patapsco river, which was the original boundary between it and 
that county. By reference to the remarks upon the latter county, 
it will be seen, that, in 1698, a part of the territory lying south of 
the Patapsco was taken from Anne Arundel, and attached to it : 
but that, in 1725, the original boundary of the Patapsco was re- 
stored, and continues to this day. 

Population of Anne Arundel (21) in 1791, 22,59S — in 1801, 
22,623— in 1811, 26,66S— and in 1821, 27,165. 

Calvert County was erected in July, 1654. By reference to 
the remarks upon Anne Arundel county, it will be seen, that, in 
October, 1654, and after the government of the province had pass- 
ed into the hands of Cromwell's commissioners, it received the 
name of Patuxent, and continued to bear that name until the re- 
storation of the proprietary government in 1658, when the origi- 
nal name of Calvert was restored by the general repeal of the 
acts and orders passed during the defection, and has continued 
until this day. The state of the boundaries between it and Anne 
Arundel, from the period at which Calvert was created until the 
final adjustment in 1824, has also been fully exhibited under 
that head. On the south, it was originally separated from St. 
Mary's by Pinchill river or creek, to its head, and a line running 
thence to the head of Patuxent river : which constitute, says the 
order of July 3d, 1654, the northern bounds of St. Mary's. The 
ordinance of the following October, above alluded to, directed 
that it should extend south "from Marsh's creek doicn the bay, 
including all the lands on the south side of the bay and the cliffs, 
with the north and south side of Patuxent r£wr." The effect of 
the general repealing order of 1658, appears to have been, the 

(21) The statement of the population of the several counties in 1801, is 
taken from the corrected census reported by Marshal Etting on 21st December, 
1801, which, as to this county and some others, varies from the original return. 



Chap. II] OF THE STATE OF MARYLAND. 87 

restoration of the bounds assigned by the order of July, 1664 ; 
but both those, and its western boundaries, were finally adjusted 
by the existing act of 1695, chap. 13, which separate it from St. 
Mary's, Charles and Prince George's, by the Pataxent from its 
source, until it meets the boundary line between it and Anne 
Arundel. 

Population of Calvert in 1791, 8,65a— in 1801, 9,297— in 1811, 
8,005— in 1821, 8,073. 

Charles Count* was one of the first fruits of loyalty to the 
proprietary, upon the restoration of his government in 1658. A 
county of that name had been established in 1050, by an order 
in council, which was repealed in 1654, and the county of Cal- 
vert erected in its stead. (-22) But on the surrender of the pro- 
vince to Fendall, the proprietary's governor, one of his first acts 
was the creation of this county, the bounds of which, as defined 
by the commission appointing officers for it, were " the river Wi- 
comico to its head; and from the mouth of that river, up the Poto- 
mac as high as the settlcmeiits extend, and thence to the head of 
Wicomico." (23) Upon this general and vague description, its 
boundaries were suffered to rest until 1(595, when Prince 
George's county was formed out of the territory lying north of 
the Mattawoman creek, and the limits of Charles rendered defi- 
nite by the act of 1695, chap. 13, confirmed and made perpetual 
by the act of 1704, chap. 92. By this act, it is separated from 
St. Mary's on the east, "by the line already described as the wes- 
tern boundary of St. Mary's ; and on the north from Prince George's, 
by the Mattawoman creek, and a straight line drawn thence 
to the head of Sivanson's creek, and with that creek to the Patu.r- 
ent." No change of this adjustment has been made, except 
in the boundary between it and Prince George's, which is 
slightly varied to tin' wr-t by an artificial line running from the 
Mattawoman to a given point on the Potomac, nearly opposite 
to Mount Vernon. This line was adopted as the boundary be- 
tween the Potomac and tin; point at which it leaves the Matta- 
woman, in lieu of the Mattawoman by the act of 1718, chap. 

(22) Land Beoards, Liber 1, folio 615. 

(23) Liber S, Court of Appeals Records, 10th May, 1C5B, and Council Cham- 
ber Records, Liber II II, l'J. 



88 THE CIVIL DIVISIONS [Intro. 

14. (21) On (lie south and east, Charles county has always been 
hounded by the Potomac. 

Population of Charles in 1791, 20,613— in 1801, 10,172— in 
1811, 20,215— in 1821, 10,500. 

Baltimore County was formed out of the territory north of 
Anne Arundel, in or about the year 1659. Our researches have 
not enabled us to discover the order in council by which it was 
erected ; but the legislative records shew, that it did not exist be- 
fore 1659; and the first description which we have of its bounds, 
is contained in the proclamation of 6th June, 1674, which declares 
that the southern bounds of Baltimore county, shall bo, " the south 
side of Patapsco river, and from the highest plantations on that 
side of the river, due south two miles into the woods." In 1698, 
an act was passed, adopting a boundary line which had been lo- 
cated between Baltimore and Anne Arundel counties, by com- 
missioners appointed under an ordinance of Assembly passed in 
1696. This line, which is particularly described in this act of 
1698, and which began upon the bay about one mile and a quar- 
ter to the south of Bodkin creek, attached to Baltimore county a 
considerable tract of country lying south of the Patapsco ; but 
in 1725, this act of 1698, so far as it attaches to Baltimore coun- 
ty any part of the territory south of the Patapsco, was wholly re- 
pealed by the act of March, 1725, chap. 1st. (25) This last men- 

(24) This act of 1743, chap. 14, enacts: that after 10th December, 1748, 
the " land lying in Prince George's county, and contained within the follow- 
ing bounds, to wit: by a line drawn from Mattawoman run, in the road com- 
monly called the Rolling road, that leads from the late dwelling plantation 
of Mr. Edward Neale, through the lower part of Mr. Peter Dent's dwelling 
plantation, until it strikes Potomac river, at or near the bounded tree of a 
tract of land whereon John Beal, junior, now lives, and thence with the river 
to the mouth of Mattawoman, shall be apart of Charles county." 

(25) The following is the description of the bounds as fixed by this act of 
1698, chap. 13, and as they remained from that period until 1725, "beginning 
at three marked trees, viz. a white oak, a red oak, and a chesnut tree, stand- 
ing about a mile and a quarter to the southward of Bodkin creek on the west 
side of Chesapeake bay, and near a marsh and a pond ; thence west until they 
cross the mountains of the mouth of Magothy river, to Richard Beard's mill ; 
thence continuing westward with said road to William Hawkins' path to two 
marked trees ; thence along said road near to John Locket's road to two 
marked trees ; thence leaving said road by a line drawn west to William 
Slade's path to two marked trees ; thence continuing west between the 



Gtap.II.] OF THR STATE OF MARYLAND 89 

tioned act establishes the existing boundary by the Patapsco 
from its mouth to its head. The western limits of this, as 
of all the other counties erected a1 an early period, origi« 
nallv were not well defined. The first settlements were made 
along tin' bay shore, or near the mouths of its tributary streams; 
and tlic description of the western limits, to which the settle- 
ments had not extended, was therefore vague and indefinite. In 
the absence of the act or order erecting Baltimore county, we 
are unable to say what were the western limits assigned by it. 
Tie' proclamation of 1674, directed that it should extend to the 
highesl plantations on the south side of the Patapsco; and the act 
of 1698, chap. 13, which has been already adverted to, terminated 
to the west, both this county and Anne Arundel, at the head of the 
Patuxent. The territory south of the Patapsco, being restored to 
Anne Arundel by the act of March, 1725, chap. 1, the head of 
the Patapsco became the western limit, and continued such until 
the formation of Frederick county in 1? Is, by the act of 1748, 
chap. 15: which, in describing the bounds of Frederick, enacted, 
•that it< Inns after reaching the Patuxent river, should run with it 
to the lines of Baltimore county, and with that county to the extent 
of the province." The common boundary of these two counties 
was tlms left to rest upon the ancient and vague definition of the 
western limits of Baltimore county until 1750, when by the act 
of 1750, chap. 13, a definite line was adopted, which begins at 
Parr's spring, and runs thence with artificial metes to the Penn- 
sylvania line. (26) On the north this county extended to 

draughts of Magothy and Patapsco rivers, until they come to a mountain of 
white stone rock — still continuing west to a road going to Patapsco, to Peter 
Bond's, to two marked trees ; thence continuing west to the main road to Pa- 
Ferry, tM two marked pines standing near tin' Ready Branch, written 
at large on the nortli Bide of said trees, Baltimore County ; and on the south 
side. unty — thence with a Inn' drawn W N W to Elk Kidgc 

road to two marked trees -. thence continuing same course of w N W to Pa- 
tuxent river, and so up the said river to the extent thereof for the bounds of 
more county. There are or may be cases in which the knowledge of 
these ancient bounds may be useful or necessary, and therefore they are 
given atlai 

I ■ 'i these counties are thus described in this act of 

1750, w Beginning at a spring called Parr's spring, and running thenoe 

■ i abounded while oak standing on the w< it side of a wagon road 

I -.' 



90 THE CIVIL DIVISIONS [Intro. 

the limits of the province, and was bounded on the east by the 
bay and the Susquehanna; and such continued to be its extent, 
until the establishment of Harford county by the act of 177-3, 
chap. 6th, which separates it from Baltimore county by a line be- 
ginning at the mouth of Little Gunpowder river, and running 
with that river to its fountain head, and thence north to the Penn- 
sylvania line. 

Population of Baltimore county (exclusive of Baltimore town 
or city) in 1791, 25,434— in 1801, 32,716— in 1811, 29,255— in 
1821, 33,465. 

Talbot County was formed in 1660-61. The order by which 
it was created, has not been found; but the Assembly proceed- 
ings first show its existence in this year. The existing records 
of the province have not discovered to us what were its ex- 
act limits anterior to the year 1706. In that year, they were de- 
finitely settled by the existing act of 1706, chap. 3d, which enacts 
"that the bounds of Talbot county shall contain Sharp's Island, 
Choptank Island, and all the land on the north side of the Great 
Choptank river; and extend itself up the said river to Tuckahoe 
Bridge ; and from thence with a straight line to the mill, common- 
ly called and known by the name of Swetnam's mill, and thence 
down the south side of Wye river to its mouth, and thence down 
the bay to the place of beginning, including Poplar Island and 
BrufFs Island. 

Population of Talbot in 1791, 13,084— in 1801, 13,436— in 
1811, 14,230— in 1821, 14,369. 

Somerset County was erected by the governor's order of 
22d August, 1666, which assigned to it, as its limits, on the 
south, the southern boundary of the State on the eastern shore; 
on the west, the bay: on the north, the Nanticoke river; and on 
the east, the ocean. This county was formed to embrace the 

called John Digge's road, about a mile above the place called the Burnt 
House woods ; and running thence up the said road to a bounded white oak 
standing on the east side thereof, at the head of a draught of Sam's creek ; 
thence N 55° E to a Spanish Oak standing on a ridge near William Roberts's, 
and opposite to the head of a branch called the Beaver Dam; thence N 20° E 
to the temporary line between the provinces of Maryland and Pennsylvania, 
being near the head of a draught called Conawago, atja rocky hill called Rat- 
tle Snake Hill." 



Chap. II] OF THE STATE OF MARYLAND. 91 

Having settlements Lb that section of the State, which were 
lanted under me direction of Elzey, Revel! and others, .is early 
as 1661, and of which we have briefly traced the origin m the 
preceding chapter. Its boundaries remained as established by 
this order of 1606, until the passage of the Act of 1742, chap. 19, 
creating Worcester county; by which Act, and the adjustment 
of the Delaware line under the agreement of 17(50, between Bal- 
timore and the Penns, its original limits have been considerably 
eontraeted and are now determined. As adjusted by these, Us 
bounds begin at Watkin's point, and run thence up Pocomoke 
bay to the mouth of Pocomoke river, and with that river to the 
mouth of Dividing creek; thence up the western side of said 
creek to Denstone's bridge: thence with artificial lines, which 
are particularly described in the Act, until they intersect the 
Delaware lines, as established under the agreement of 1760, and 
with those lines until they intersect the Nanticoke river; thence 
with the Nanticoke to its mouth; and thence down the bay to 
Watkin's point, including all the Islands which had been pre- 
viously regarded as attached to Somerset. (27) 

Population of Somerset in 1791, 15,610-in 1801, 17,348- 
in 1811, 17,195— in 1821, 19,579. 

Dorcuestkr County, which was formed about the year 1069, 
appears to have included originally all that part of the province 
lying between Talbot and Somerset. The proclamation, or or- 
der in council, by which it was erected, has not been discovered 

(27) The description of the bounds of Somerset county by this Act of 1742, 
chip 19 is as follows: « beginning at Watkin's point, and thence running up 
Pocomoke bay to the mouth of Pocomoke river, and up and with said river to 
the mouth of Dividing creek; thence up the westernmost side of the said creek 
to the bridges called ' Denstone's bridges;' thence west to the main road call- 
ed 'Parahawkin road;' thence up and with the said road to John Caldwell 
senior's saw mill; thenceup and with the said road, over Cox's branch to 
Broad creek bridge, and down the said branch and creek into Nanticoke 
r thence down the said river with Dorchester county to the mouth 
thereof j and thence, including all the Islands formerly deemed to be in So- 
merset coumv, to Watkin's point; and all the remaining part of what. m now 
reputed to be within the county of Somerset to the extent of the province, to 
be and be called \\ n,ty." No change has been made u tail de- 

scription of the bounds, except by the adjustment of the Maryland and Dela- 
te, under the agreement of 1760, between the Penns and Lord Baltimore, 
for which see Antea, chap, lit | 



92 THE CIVIL DIVISIONS [Intro. 

in the course of our researches. In 1706, when Queen Anne's 
county was created, the northern limits of Dorchester were 
determined by the bounds assigned to Queen Anne's and 
Talbot, by the Act of 1706, chap. 3d. The effect of this Act 
was to give to the former, as its northern boundary, the Chop- 
tank river from its mouth to Tuckahoe creek, thence up Tucka- 
hoe creek to the mouth of the Whitemarsh branch, and thence a 
north east line to the extent of the province. Caroline county 
being formed in 1773, by the Act of 1773, chap. 10, out of parts of 
Dorchester and Queen Anne's counties, Dorchester then re- 
ceived its existing northern limits, which begin at the mouth of 
the Choptank, and run thence up the Choptank to the Tuckahoe 
to Hunting creek, and with that creek, by artificial lines particu- 
larly described in the Act, to the Delaware line. On the east, 
Dorchester is bounded by the Delaware line, as adjusted under 
the proprietary's agreement of 1760. (28) On the south, it has 
always been separated from Somerset by the Nanticoke ; and on 
the west, it has always been bounded by the bay. 

Population of Dorchester in 1791, 15,875— in 1801, 16,346 
—in 1811, 18,108— and in 1821, 17,759. 

Cecil County was created in 1674, by the proclamation of 
governor Charles Calvert, which described its bounds to be "from 
the mouth of the Susquehanna river down the eastern side of 
the bay to Swan point ; thence to Hell point, and so up Chester 
river to the head thereof." These bounds were slightly varied 
by a proclamation issued a few days afterwards, and so remained 
until they were finally ascertained by the Act of 1706, chap. 3d, 
which enacts " that Cecil County shall contain all the lands on 
the north side of Sassafras river and Kent county, and shall be 
bounded on the east and north by the bounds of the province, on 
the west by the Susquehanna and the bay, and on the south by 
the Sassafras river and Kent county." 

Population of Cecil in 1791, 13,625— in 1801, 9,018— in 1811, 
13,066— and in 1821, 16,048 

Prince George's County, as described by the Act creating it, 
viz. the Act of 1695, chap. 13, included all the territory lying 

(28) For a view of the adjustment of the boundaries of this county, by the 
bounds assigned to Talbot, Queen Anne's and Caroline, see the descriptions of 
the bounds of those counties. 



Chap. II.] OF THE STATE OP MARYLAND. «>:j 

north of the Mattawoman and Swanson's creek, and a straighl 
line connecting their heads; and between the rivera Patuxent 
and Potomac. On the south, do change has been made in the 
line dividing it from Charles, except that effected by the act of 

17 1^, chap. II, which has already been QOticed in our remarks 
upon Charles county. In L748, this county received its first de- 
finite western limits by the creation of Frederick county, from 
which it was separated by a straight line, beginning at the lower 
side of the mouth ot" Rock Creek, and running thence with Hyatt's 
plantation to the Patuxent river. Since that period, no change 
has been made in its hounds, except by the interposition of 
the District of Columbia, which has given to it, as its present 
southern ami western boundaries, the Potomac river until it 
meets the lines of the District, then with those lines lying in 
.Maryland until they intersect the former line from Rock creek, 
ami with that line to the Patuxent. On the north and west, it 
has always been separated from Anne Arundel and Calvert by 
the Patuxent ri\ er. 

Population ofPrince George's in 1791, 21,344— in 1801, 21,185 
—in 1811, 20,589— and in 1821, 20,216. 

Queen A.NNe's < ot \iv was created by the act of 1706, chap. 
3d, and its hound- remain as established by that act, the act of 
177-5, chap. 10, and the adjustment of the Maryland and Dela- 
ware fines. On the north it is separated from Kent county by 
the Chester river. On the east it is bounded by the Delaware 
and Maryland line. On the south, it is separated from Talbot 
and Caroline, counties by the Wye river, and an artificial line run- 
ning thence to the Tuckahoe creek, already adverted to as the 
northern line of Talbot, and thence with the northern line of Ca- 
roline county to the eastern limits of the State. (29) 

I) The bounds of Queen Anne's, as described by the act of 1706, chap. 
3d, arc, "that after the 1st May, 1707, the Island called Kent Island, and all 
the land on Ler river to a branch called Se well's Branch, 

and with the sai<l branch to the head thereof, and from thence with an cast 
line I the province, and bounded ou the south with Talbot 

county to Tuckahoe bri Ige, and from thence with Tuckahoe creek and Chop- 
tank river to the mouth of a branch falling into the said river, called the 
Whit neb, and thence with a N E line to the extent of the pro- 

vince, and bounded on the cast by the extreme bounds of the province. The 



91 THE CIVIL DIVISIONS [Intro. 

Population of Queen Anne's in 1791, 15,463— in 1801, 14,851 
—in 1S11, 16,648— and in 1821, 14,952. 

Worcester County, as it now exists, was formed in 1742, by 
the act of 1742, chap. 19. A county of that name was erected 
in 1G72, which began at the southernmost bounds of Rehoboth 
bay, and ran thence north up the seaboard to the South Cape of 
Delaware bay, and thence to Whorekill creek and up the bay to 
40th degree of north latitude ; but this, it will be perceived, inclu- 
ded merely the territory, claimed by Penn and his successors, and 
ultimately ceded to them by the agreements of 1732 and 1760, 
which are given in detail in the preceding chapter. The bounds 
of this county remain as determined by the act of 1742 ; and they 
are, on the west, the line between it and Somerset already de- 
scribed, and on the north, east and south, the lines of the State. 
Population of Worcester in 1791, 11,640— in 1801, 15,570— 
in 1811, 16,971— and in 1821, 17,421. 

Frederick County was created in 1748, by the act of 1748, 
chap. 15, and originally embraced the whole of the province ly- 
ing west of the western lines of Prince George's, Anne Arundel 
and Baltimore counties. By the resolves of the Convention 
which formed our present State Constitution, adopted on the 6th 
of September, 1776, two new counties were formed out of por- 
tions of it, viz : Montgomery on the south, and Washington on 
the west. From the former of these, it is divided by a straight 
line running from the mouth of the Monocacy river to Parr's 
spiing. At this spring, the lines of Frederick meet the lines of 
Baltimore county, and run thence to the Pennsylvania line, with 
the western lines of the latter as adjusted by the act of 1750, 
chap. 13. (30) The bounds between it and Washington, as de- 
fined by these resolves, consist of a line beginning at the point 
at which the Pennsylvania line crosses the South mountain, and 
running thence along the summit of that mountain to the Poto- 
mac. 

change in these produced by the creation of Caroline county, will appear from 
a description of the bounds of that county; and the lines of Queen Anne's re- 
main unaltered, except as affected by the creation of this county, and the ad- 
justment of the Delaware under the agreement of 1760, for which see chap- 
ter 1st. 

(30) For the bounds between it and Baltimore county, as finally settled by 
the act of 1750, chap. 13, see Supra note (26) to this chapter. 



Chap. II.] OF ™ E STATE OF MARYLAND. 95 

' Population of Frederick in 1791, 30,791-in 1801, 31,523-* 
1811, 34,437-and in 1821, W,459. 

HarfobdCoitnt, was created in 1773, by the act ol 1773, 
6th which enacts .. that its bounds shall begin at the mouth 
of the Little Falls pfGnnpowder river, and run thence with said 
falls to the fountain head; thence north to the hue ot the pro- 
duce; thence with that line to the Susquehannah mergence 
withtha i river to the Chesapeake bay; thence with the bay, in- 
duing Spesutia and Pool's Islands, to the mouth of Gunpowder 
riverTand thence up said river to the beginning." No change 
has heen made as to its bounds since its creation 

Population of Harford in 1791, 14,976-in 1801, 17,624-m 
1811 21,25S— in 1821, 15,924. 

Caroline Count, was erected in 1773, by the act of 1773, 
chap 10. It was formed out of parts of Dorchester and Queen 
Anne's; and its bounds, as described by that act, "begin at a 
point on the north side of the mouth of Hunting creek, in Dor- 
chester county, and run thence with that creek to the mam road 
at James Murray's mill; thence with thai road, by the White 
Chapel Parish Church, to the north west Fork bridge; thence 

with „,, main road (thai leads to Cannon's Ferry) to Nauru • 

river- thence with the said river to and with the exterior limits of 
Dorter, to the exterior limits of Queen Anne's; thence with 
the limits of Queen Anne's to intersect the main road that lends 
,.„„„ Beaver Dam Causeway to Dover town, in Kent county, 
Q pon Delaware; thence with the said road to the Long 
liarsh; thence with the said Marsh and stream of the branch of 
Tuckahoe creek toTuckahoe bridge; .hence with the said creek 
to Great Choptank river, and with said riverto the place of begin- 
ning" No change has been made in these bounds, excepl by 
the act of 1825, chap. 81, which has authorised a slight variation 

of the line at. point for the convenience of a Mr. Noble, o< 

Dorchester county. . 

Populati I ■" WW. - } '^- m l801 ' 9 ' 1bl_m 

leil.ii.l.-.ii-.-mdi.. L821, 10,108. 

u kgH1N0T0 M Count* was created the 6th September, L776, 
bf the resolves of the Convention thai adopted our present State 

I institution. On the east, it is separated 9 Frederick by the 

line along the f the South mountain already desenbed 



<J( ' THE CIVIL DIVISIONS [Inlro , 

as the line of Frederick. (31) On the south, it is bounded by 
the Potomac; and on the north, by the Maryland and Pennsyl- 
vania line, to the west; it originally included the whole province 
lying west of Frederick ; but by the creation of Alleghany 
county, in 1789, Sideling hill creek became, and still continues 
to be its western boundary. 

Population in 1791, 15,822-in 1801, 18,650-in 1811 IS 730 
—in 1821, 23,075. ' ' 

Montgomery County was created at the same time and in 
the same manner, as Washington County ; and its bounds remain 
as then determined. It is separated from Frederick, on the 
north by a straight line running from the southern side of the 
mouth of the Monocasy to Parr's spring. On the north and 
east from Anne Arundel by the Patuxent river. On the east and 
South, from Prince George's by the Hue already described as the 
western boundary line of Prince George's. 

Population in 1791, 18,003-in 1801, 15,058-in 1811 17 9S0 
—and in 1821, 16,400. ' ' 

Allegany County, the Joseph of the Stale, was created in 
17S9, by the act of 1789, chap. 29, and includes the whole extent 
of the State lying west of Sideling Hill creek, which divides it 
irom Washington, 

Population in 1791, 4,809-in 1801, G,303-in 1811 6 909 
in 1821, 8,654. ' °' J[)J ~ 

The bounds, which are assigned to the respective counties, de- 
fine the extent of their general county jurisdiction; but to obviate 
all difficulties, which might arise where two counties are divided 
by a navigable stream, the act of 1704, chap. 92, extends the ju- 
risdiction of every county lying on any navigable river which di- 
vides it from another county, from its own shore to the channel 
of such river. So that the channel of any such river is the fine 
between the two counties It enacts, also, as to vessels riding at 
anchor in the channel of any such river, that process may be 
served on board of such vessel by an officer of either county giv- 
ing the preference to the first service, but that when the 'vessel 

69 ( re 1 Lte e t t o h th SCVer t al T " ^ ^ *> ^ ** C °' and 1824 > ^ 
t»y, relative to the actual running of this line. 



Chap, ll.j OF THE STATE OF MARYLAND. 97 

is moored by am hold upon the land, she shall be deemed to bt! 
in that county to whose shore she" is firsl fastened. 

3. Of the Districts. 

The ciwl divisions of the State, which are called Districts, aro 
established for various purposes; but they all fall under the two 
a of Judicial and Electoral Districts. 
The Judicial Districts will be fully considered hereafter, when 
we come to treat of the courts with whose organization they are 
connected. It will be sufficient here to remark, that the State is 
divided into six judicial districts, for each of which, a chief 
judge and two associate judges are appointed, who constitute 
" the County Court," for each county within their district, and 
are invested with plenary civil and criminal jurisdiction. The 
1st of these districts consists of St. Mary's, Charles and Prince 
George's counties. The 2d district of Cecil, Kent, Queen 
Anne's and Talbot. The 3d, of Anne Arundel, Calvert and 
Montgomery. The 4th, of Caroline, Dorchester, Somerset and 
Worcester. The 5th, of Alleghany, Washington, and Frederick- 
And the 6th, of Baltimore and Harford. 

The Electoral Districts relate either to the elections under the 
Constitution of the United States, or those under the state go- 
vernment which are peculiarly called " the. state elections." The 
elections under the former, for which the State is divided into 
districts, are either the elections for members of Congress, or for 
electors of President and Vice-President of the United States. 

Maryland i-, and has been for many years, entitled to elect 
nine representatives in the Congress of the United States; and 
under the power delegated to the States, by the 4th Section of 
the 1-t Article of the Constitution of the United States, to regu- 
late the time, place and manner of holding the election for these, 
jeet to the superior power of Congress to alter such regula- 
tions or introdnce new.) The State re divided, by the existing 
of 1805 chap. !>7. section 2d, into eight congressional dis. 
tricts. Of th( Mary's, Charles and Calvert, constitute the 

1 • district. Prince George's and A.nne Arundel, including the 
city of Innap 2d. Montgomery and thai part of Freder- 

ick lying east of the tfonocacy river, the 3d. Alleghany, Wash- 
ington, and the remainder of Frederick, the 1th. Baltimore 
13 



98 THE CIVIL DIVlSIOxVS [Intro. 

city and county, the 5th. Harford, Cecil and Kent, the 6th. 
Queen Anne's, Caroline and Talbot, the 7th. And Dorchester, 
Somerset and Worcester, the 8th. Of these, each district elects 
one representative, except the 5th, which is entitled to 
elect two. (32) 

The State of Maryland is also entitled to elect eleven electors 
of President and Vice President, and the exclusive power is 
given to the legislature of each state to determine the manner of 
election. In exercise of this power, the State is divided, by the 
existing act of 1S2G, chap. 213, into nine electoral districts. 

(32) Under the Constitution of the United States, (article 1st. section 2d, - ) 
the representatives of the states in the Congress of the United States are dis- 
tributed amongst the several states, according to the respective numbers of 
their citizens; and these numbers are estimated by adding to the whole num- 
ber of free persons within them, (including those bound to service for a term 
of years, and excluding Indians not taxed,) three fifths of all other persons. 
This principle of distribution extends also to the direct taxes levied under the 
authority of the United States: so that in the slave holding states, if their re- 
presentation is increased by the number of their slaves, so also are their taxes, 
and in the same proportion. Those who object so strenuously to this partial 
representation of the slave population in the slave states, always keep out of 
view this fact, that their taxation keeps pace with their representation. 

The constitution having thus determined the apportionment, it has left to 
Congress the determination of the ratio: or, in other words, the aggregate 
number of representatives, subject only to the restriction, that the number 
if representatives shall not exceed one for every thirty thousand, and that 
each state shall at least have one representative whether her population comes 
up to the ratio or not. (Constitution art. 1st. section 2d.) To carry into effect 
its principle of allotment, it directs, also, that an enumeration of the popula- 
tion should be made within three years after the first meeting of Congress, and 
within every subsequent term of ten years thereafter ; and it determined the 
number of representatives to which each state was entitled, until the first cen- 
sus was taken. Until the first census was taken, Maryland was entitled to six 
representatives ; and by the apportionment in 1791, under the first census, 
she became entitled to ciglit representatives. Under the apporti}nment of the 
act of Congress of January 14th, 1802, predicated upon the census taken 
under the act of 28th February, 1800, she became entitled to nine represen- 
tatives; and has continued to retain that number under the successive appor- 
tionments of the acts of Congress of 21st December, 1811, and of 7th March, 
1822. 

Under the first allotment, the State was divided into six districts, (each dis- 
trict choosing one representative,) by the act of 1790, chap. 16, under which 



Chap. II.] OF THE STATE OF MARYLAND. 99 

Of these, Calvert, St, Mary's and Charles, compose the 1st dis- 
trict Prince George's and Montgomery, the 2d. Frederick, 
Washington and Allegany, the 3d. Baltimore and Annapolis 
cities and Anne Arundel, the 4th. Baltimore county, the 5th. 
Harford and Cecil, the 6th. Kent and Queen Anne's, the 7th. 
Talbot, Caroline, and the hist election district of Dorcheshr the 
8th. Somerset, Worcester, and the remainder of Dorchester, the 
9tfa The third and fourth are each entitled to elect two electors; 
and the remaining districts one for each ; and the person elected 
must be a residenl of the district for which he is so elected. (3:3) 

St Mary's, Charles and Calvert, composed the 1st district :-Kcnt, Talbot 
Cecil and Queen Anne's, the 2d:-Anne Arundel, including Annapohs, and 
Prince Geor-e's, the 3d. Harford and Baltimore town and county, the 4th: 
Somerset, Dorchester, Worcester and Caroline, the 5th ^Frederick, Wash- 
ington, Montgomery and Alleghany, the 6th. In 1791, a new diy*.on was 
made to meet the apportionment under the first census, by the act of 1791 , ch. 
62,(the operation of which was postponed until that apportionment, by the act 
of 1791, ch.87j adapted to the alternatives of her being entitled either to eight 
orni -. The apportionment ; M.Mary's, 

Charles and Calvert. ■ > distri : t:-Prince George's and Anne 

Arundel, h.clmli lenck, adjacent to 

the Monocacy, the 3d:-Alleghany, Washington and theremainder ofFreder- 

irk Ul e 4th:-Baltimoretown and county, the 5th:-Harf0rd, < , cil and Kent, 
the 6lh:-Queen Anne's, Caroline and Talbot, the 7th:-Dorchester, Somerset 
and Worcester, the Bth. Tl act oi L805 adapted the districts to the 

increase of reprcscntat 

(33) Under the Constitution of the United Sides, each state is entitled to 

elect as m ! "^ ,jct - of ner 8l presentatives 

amounts to in th dtioD xvas ,hc 

result of a com] ' " "' ' l " l, ' r "' 

Mary ] entitled, afti itution, and before the 

first apportioi .tin 1791, toei I under the apportionment in 1791, 

founded upon th , '" t "' 

j, and all which h ren electors. (See next note 

ta | . of these elector , : prevailed 

in M 

allotm 

to ?ote i " were to b< 

■ 
fire on the Wt tern 31 e, andt n the Eastern hon . havinga plu- 

rallt , should bed to be the electors. emwaskepl 



100 THE CIVIL DIVISIONS [Intro. 

up by the succeeding Act of 1791, chap. 62, and continued until 1795, when 
by the Act of 1795, chap. 73, the district system was adopted, and. the State 
divided into ten districts ; of which St. Mary's, Charles and Calvert, formed 
the 1st: — Prince George's and Montgomery, the 2d: — Frederick, the 3d: — 
Washington and Alleghany, the 4th: — Baltimore town and Anne Arundel in- 
cluding the city of Annapolis, the 5th: — Baltimore county exclusive, and Har- 
ford, the 6th: — Cecil and Kent, the 7th:— Queen Anne's and Talbot, the 8th: 
— Caroline and Dorchester, the 9th: — and Somerset and Worcester, the 10th. 
Under the gerrymandering division of the Act of 1805, chap. 97, sect. 3d, 
adapted to the increase under the apportionment of 1802, the State was divi- 
ded into nine districts; of which the 5th, 6th, 7th, 8th and 9th, were the same 
as under the existing Act of 1826 ; and the rest different either in number or 
the manner in which composed. Under the Act of 1805, the 1st district, con- 
sisted of St. Mary's, Charles, and first election district of Prince George's — 
the 2d, of Calvert county; the remainder of Prince George's; and the 3d and 
4th election districts, of Montgomery county — the 3d of the remainder of 
Montgomery, Anne Arundel, including Annapolis, and Baltimore city, and the 
4th was the same as the third under the Act of 1826. 

Many attempts have been made in Maryland to bring back this election to 
the general ticket system ; but without success. It is the only system which 
will ever give to the State her proper weight in the election of a President. 
Under the present system, she seldom tells more than one or two clear votes in 
favour of any candidate; and her influence upon the election is, therefore, about 
equal to that of Delaware. The large states, in general, make a better use of 
their power; and perhaps Maryland would have been more careful in pre- 
serving her integral influence, had that influence been greater. Yet small as 
it may be, in contrast, there may be occasions on which her entire vote, cast 
one way or the other, will decide the election. The attempts to introduce 
the general ticket system have generally been made under circumstances 
which ensure their defeat. No party, on the eve of an election, can be ex- 
pected to assent to a change, which deprives them of what are considered cer- 
tain votes in some of the districts; and to stake the whole upon a general elec- 
tion, when they believe that the majority of the State is against them, or even 
when they fear it. In Maryland, the parties have generally divided its popu- 
lation so equally, that each is trembling for the result until the election closes; 
and with such apprehensions, it requires strong nerves to stake the whole upon 
a single cast. They generally calculate, also, on the advantage of having 
certain districts which excite no apprehensions, require no efforts, and enable 
them to direct the whole of their attention to the dtbateable districts, upon 
which the whole power and influence of the two parties is concentrated on 
the eve of an election. The result of this concentration is obviously the in- 
creased exercise of corrupting influences, whose capacity is enlarged by con- 
tracting the sphere within which they are to operate. It is therefore believed 
that not only would the relative influence of the State be increased, but also 



Chap. II.] OF THE STATE OF MARYLAND. 101 

the purity of these elections promoted, by introducing the general ticket sys- 
tem; but such change ought to be made in the absence of party excitement, 
and not with a view to any particular election. 



CHAPTER III. 

OF THE SOURCES OF MARYLAND LAW. 

" Non ingens solum sed perpetuis humeri* sustinendum," was the 
strong and expressive language of Sir Henry Spelman, when he 
attempted to describe the aspect which the study and profession 
of the English law wore to him on his first approach to its intri- 
cacies. It was the natural exclamation of an ingenuous and in- 
experienced youth, approaching with proper self-distrust the ac- 
cumulated experience and learning of ages, and animated with 
the determination to obtain the entire mastery of the studies to 
which he had devoted himself. Three hundred years have rolled 
by, since the antiquarian drew this lively picture of the extent 
and variety of the science of the law, and of the unceasing toils 
that await all who aspire to its highest walks. Since that period, 
the rights of property have been modified in endless varieties; a 
thousand new sources of litigation have been opened ; and all 
that learning could collect, talent invent, or wisdom apply, have 
been assiduously employed in rearing a system of jurisprudence 
adapted to the ever-varying wants and enterprises of industry, 
wealth and refinement, and accommodated to the new principles 
of civil and political liberty, which have since started into exist- 
ence. The comparatively rude and barbarous science of that 
day, which he contemplated with wonder, lies scattered in frag- 
ments around the base of our modern system of jurisprudence, 
like the ruins of some rude, yet venerable structure of antiquity, 
around some splendid edifice of modern days, to heighten its 
beauty and symmetry, by lending to it all the colouring of con- 
trast. Yet with all the advances which this system has made to 
maturity, and with all the efforts which have been made to give 
to it the rank of a science, and to impart to it proportion and 
symmetry, by reducing its arbitrary doctrines to general and con- 
necting principles, the labour of the student has been increased at 
every step. The decisions which define and illustrate these 
principles, in all their various applications, have now become so 



Cimp.HI.] THE SOURCES OF MARYLAND LAW. 103 

numerous that but few c*n ** **» pwSttc rigidly the precef* of 
lonK',.',, bytradfeg them with all their modifications to then 
foUnlain h ead. The age of <%esfe amd abridgments has arrived, 
and theS e which were intended as mere guides for the student, 
have become in his hands »■>>«! the itinerary often is in the hands 
of ^ tr-.vrllrr. Both of then too often, put a stop to .nqn.ry 
and research, al the ,er] poinl at which these ought to begin < 
, iml totter aid the student relies upon decisions which he never 
n ,. ul and the traveller describes countries which he never saw. 

TVl ,. ,,,. ma n 3 causes Which will always conspire to prevent 
t h e laws of any country from taking the rank of a science, and to 
render the study of then rather an exercise of memory, than an 
effort of reason in the application of general principles to parti- 
crfai The want of certain fixed and (if we may be par- 
do ned the expression) mathematical truths in legislation, and the 
congtaBt Q ecessity of < arying and modifying the laws of any coun- 
try S o as to accommodate them to the various states of society, 
tneit differenl degrees of civilization and refinement, and their 
various exi mcies, may be named amongst the most prominent 
C a U ses of those discordant rules ami prh dples, which disfigure 
■ known system of laws. Men, in view of a present evil or 
nn impending danger, lose sight of every thing else, ,n then- ef- 
fort, to escape .« : and so il is with communities in their legisla- 
tion If their laws either produce or fail to correct any particu- 
lar'cvil, of Which they an- made sensible by its actual operation 
upon them; or if they find them inconvenient or oppressive in 
their effeets upon any particular district or portion of the com- 
nmnity, their whole aim is directed to and limited by the correc- 
ti„„ of the evil actually felt In applying the remedy, they look 
not beyond the present evil; not even to the similar cases which 
1:llM . „, the course of events, require the application of a similar 
remedy : and the] do no, even pause to contemplate the conse- 
que nces of the change they introduce. Their course of correc- 
tion, on suchoccas 3,'is like thai of the musician, who tunes a 

particular keywithoul sounding il in consonance with the rest, so 
a s to produce harmonj amongsl the whole. The result is, .hat 
iheir legislation is continually deformed by local or partial enact- 
ments which are al war with the symmetry of the whole system, 
and which oftentimes ... -he effott to amend, "RH lUnae } »rrr 



104 OF THE SOURCES [Intro. 

of cloth put into an old garment, only serve to make the rent worse." 
The modern systems of codification may obviate this for a time; 
but these ever operating causes soon destroy their uniformity, and 
call for the renewal of the process. 

In proportion as the laws of any country become a mere collec- 
tion of arbitrary and unconnected rules and maxims, so will the 
study of them be rendered difficult and disheartening. When 
these are arbitrary and conventional, it is difficult to obtain com- 
plete mastery over them, even if within view and reach ; but the 
difficulty is much enhanced, when the sources from which they are 
to be drawn are various, their origin is involved in obscurity, and 
their common application to the same subject draws them into con- 
flict. 

*? There is scarcely any state in the Union, in which the latter 
causes of difficulty and embarrassment exist to so great a de- 
gree as in Maryland. Its laws consist of the emanations 
from three distinct systems: The usages and laws of England, 
the mother country : The usages and laws of the provincial or 
ante-revolutionary government of Maryland, and the laws of 
its present state government. And these, too, are subject to 
certain modifications and restrictions, flowing from the eminent 
dominion of the Constitution of the United States. The difficul- 
ties do not consist merely in collating these, and in determining 
the result of their common operation. This labour would be 
comparatively light. But when we come to the application of 
the usages and laws of England, we find that even where they 
have not been superseded by provincial or state legislation, there 
are yet many of them, which, from their very nature, and as ac- 
commodated to a state of society unknown to the colonists of 
Maryland, are wholly inapplicable ; and others, which although 
applicable, have never been expressly or impliedly adopted. 
Hence, before this application can be made, it becomes necessa- 
ry to determine, by enquiry into the usages of the people of Ma- 
ryland, the decisions and practice of our Courts of Justice, the 
provisions of our Constitution and Declaration of Rights, and 
the acts of our Provincial and State Legislatures, — "what portions 
of the common and statute law of England are in force in this State." 
^- It is manifest, that, at the time of the colonization of Mary- 
land, there were many portions of the laws of England, which 



Chap. I.,.] MUnLANPl.XU 105 

urn . wholly ...applicable to the ennd.t.on of the c-„l,.„,,ls. Thus, 
,s all the lands i> the State were held in free and common socage 
the Qumerous rul es relative to the rights and mordents of the 
Other spee.es of tenure, were wholly inapplicable; as there were 
no established orders of nobility, all the laws relating to the.r pe- 
culiar right* and immunities, were also inoperative; and, as the 
commence of the colonists was very limited, there were many 
commercial and revenue regulations, which were wholly unsuit- 
ed to their condition. To these, might be added many other in- 
stances of the absurdity of introducing, in mass, the laws ot the 
mother country as the laws of the colony. As has been justly 
observed by Chief Justice Buchanan, in delivering the opinion 
of our Court of Appals in the case of the State vs. Buchanan 
and others, "They were in the predicament of a people dis- 
covering and planting an uninhabited country; and a* they 
brought with them the rights and privileges of native Englishmen 
theTconsequently brought with them all the laws oi England, 
whuh were uecessary to the preservation and protection of those 
righU and prii ileges. And hence, it cannot be questioned, that 
tfL brought with them all the laws of the mother country, so 
far aa they were applicable to the.r situation and the condition 
of an infant colony." (I) Such is the rule of right reason, and 
,he doctrine of the English law, as to itscolon.es generally (2) 
which lH lh( , Ocular instance, were sustained and enforced by 
the provisions of the charter, under which Maryland was colo- 
nized (3) Although this is the common principle which sanc- 
tions the introduction, both of the common and statute law, 
?el foe tests of their applicability are somewhat different, and we 
.,,.,11 therefore consider severally the question of their application. 

I 1 ) Stfa Harris and Johnson's Reports, 356. 
(2) UtBlarkstone'sComn, K>7,2P.Wms. -.."., 2d Salk 411 
3 ) Th. 1 0* snetion of the charter of Maryland declares, that all the subjects 
of the English crown transplanted to the province and their descendants in 
, wit hin the province, ■hall be esteemed natives, and liegemen 
of the king as of his kingdom of England and Ireland; and shall in all things 
be held reputed and I r. ated, as the liegemen of the king born within the king- 
dom ol England; and shall hare and enjoy all primage,, franchket and lift- 
, -ti.. s of the kingdom ol England in th- -..,.,. i manner as ita lie* subjects born 

WI thin said kingd .without the hindrance or molestat I the ,n w„. 

Thi, pn-v.s.on, which placed the colonists in point of liberty and prmlege 



IOC THE SOURCES OF [Intro. 

(1) Of the introduction and present operation of the Common Law. 

The sources and character of the English common law have 
been already fully illustrated in the thousand treatises and deci- 
sions of the last two centuries. It has had its apologists and its 
accusers, arrogating to it every excellence, or denying it all merit. 
By some, it has been styled, "the perfection of the reason," and 
considered as the thirty-nine articles of the law, which it were heresy 
to doubt. Others have denounced it as a system of harsh and arbi- 
trary rules and technical refinements, originating in a barbarous 
age, which sits like a straight-jacket upon the enlightened and ex- 
panding reason of modern days. And there are those who as- 
pire to the privilege " of shooting folly as it flies," who ridicule its 
technicalities and unbending rules, as if they were not insepara- 
ble from a science, and as if they were mere jargon and mystery, 
serving, like Mokanna's veil, to cloak deformity. Whatever may 
have been the origin of those rules and principles, which consti- 
tute what is called "the common law," whether they were the em- 
anations of some system of positive laws long since lost, or were 
built up by the judicial legislation of ages, introducing and adapt- 
ing principles to the cases as they arose, they are to be admired 
for some of the very reasons which have been urged against them. 
Unlike the statute law, they do not limit and restrict their opera- 
tion by defined cases, beyond which they must not go even when 
a similar evil calls them. They are a collection of principles 
unrestricted by cases, except where the restriction of the case is 
itself the restriction of the principle. The statute law is a defini- 
tion of cases : the common law, when properly applied, a defini- 
tion of principles. In the former, the cases enumerated limit 
the remedy ; in the latter, however new in instance the case may 
be, the old principles, if appropriate, will apply themselves. With 
the common law laWyer, " the ancient ivays and land marks," upon 
which it is his pride to stand, are the long received and well-as- 

upon the most favoured footing of the native subject, was relied upon ia all 
their after controversies with the proprietary and his governors, as entitling 
them, not only to the benefit of all such English statutes, as they found condu- 
cive to their welfare, and protective of their rights; but also to the full ad- 
vantage of all those privileges and securities, which the English constitution 
and laws threw around the people of England, for the protection of their liber- 
ties 



Chap. HI.] MARYLAND LAW 107 

certaiced doctrines which inform and animate the system, and 
describe the general character of the rights it iriTe^, and th« rewie- 
dies by which it protects them. He refers to the treatises which 
are received as evidence of it, and to the decisions of the courts 
which record its application, not for the skeleton of the case, but 
for the vital principle which is embalmed in it. 

Such a system of principles, if well defined and sufficiently ex- 
tensive, has in some respects evident advantages over one which 
rests upon positive regulations, applicable only to specific cases. 
It may have less certainty ; but even this objection ceases, when, 
as in the case of the common law, the applications of the princi- 
ples have been so frequent and diversified, as to assign them all 
their distinctive features. And whilst they are, in the general, 
sufficiently definite to prevent a misapplication of them, they 
bring within their operation every case, however new in its 
facts and circumstances, which in its nature and tendencies falls 
within their range. They make a kind of Linnaean system of prin- 
ciples, with all their generic and specific distinctions, as illustrated 
by their past application to the recorded cases: so that when any 
new case arises, we examine it, as we would a new plant, merely 
that we may discover these distinctions, if present, and classify 
it accordingly. Such a classification is a classification by attri- 
butes, whilst that of positive law is too frequently by facts and 
circumstances. Now the facts and circumstances, which surround 
human transactions, even when they spring from the same motives, 
or tend to the same end, may be infinitely diversified. They are 
but the dress of the intent, or the modes by which it acts itself 
out; and they may take whatever form ingenuity or caprice may 
suggest. The modes, by which an intent is accomplished, have 
no necessary connexion with it; and therefore they cannot be 
relied upon as the characteristics of the intent. Defining an in- 
tent by the surrounding circumstances, is like describing a man 
by his dress, which he may change at pleasure. It is manifest, 
therefore, that all rules which are intended to operate upon, regu- 
late, or apply human intents, will best accomplish their purpose, 
by describing the intent, to which they relate by its inherent 
qualities and attributes ; whilst they leave the latter to be collected 
from the circumstances of any particular case, not as necessary 
ingredients of the definition of the intent, but as facts which may 
serre to display the existence of the defining qualities. 



108 THE SOURCES OF [Intro 

Such are the character and objects of the common law, when 
rightly understood; consisting of principles, which, although not 
properly susceptible of that expansion which works a change in 
the principle, are not restricted and tied down by the circumstan- 
ces of their prior application, but do admit of that expansion that 
merely displays the hitherto unapplied capacity of the principle. 
Such expansions are the mere unfolding of its coils. A few instan- 
ces will illustrate the nature of this capacity. Murder at the 
common law is defined to be, "the killing of any reasonable 
creature in being and under the king's peace, (or the peace of 
the State,) with malice aforethought, either express or implied, 
by any person of sound memory and discretion." Now here the 
act of killing, the sanity of the agent, the malice aforethought 
with which the act is done, and the being of the party slain, when 
killed, under the protection of the king or state, are all that define 
the offence ; and however novel the circumstances may be, if 
they display these, the definition attaches. No matter how the 
intent may act itself out, it cannot escape the grasp of the defini- 
tion. If the party be poisoned, or starved, or drowned ; or by 
the wilful and unlawful act of the party charged subjected to any 
condition, of which death was the probable consequence, and 
which in fact results in death, the killing is imputed to the party. 
And therefore, when a son exposed his sick father to the air, 
against his will, in consequence of which he died ; and the Har- 
lot exposed her child in an orchard, where it was killed by a bird 
of prey ; and in a more recent case, where a sick apprentice died 
from the wilful neglect and harsh treatment of his master, all 
these were held to be cases of murder. So in larceny, the in- 
gredients in the common law definition are: "the felonious tak- 
ing and carrying away of the goods of another, against his will, 
and with intent to convert them to the use of the taker." 
The felonious intent of the party is left to be collected from 
the circumstances of each case ; and if this intent exists, 
no matter what the mode in which the party may obtain the 
bare possession, it is held to be a taking. If he actually take it 
without the knowledge and consent of the owner; or if the bare 
possession of it is actually delivered to him by the owner, under 
some trick or fraud practised by him upon the owner; or if the 
owner delivers him a qualified possession, i. e. for a special purpose; 
in all these cases, coupled with a felonious intent and conversion 



riK M ,ni, MAINLAND LAW. W 

lhcr , is in the ,unt.M»plntion of the common lau a taking ; and 
^ the modem c^, which apply in such vanety the doctnnes of 

ple t(( tm . De w modes, suggested by modem ingenuity, b which 
the feloniousintenl reaches the possession of the property, so a 
^convert it against the.wifl of the owner. The borrnmg, the 

rfaH^ff^'^ /<** P"***™ caSCS ' arC ^ S ° many Tl 
pedes of Z old genus. To take bat another d urtrat.cn. bor- 
rowed from the rules of the eommon law, as applicable to end 
cases, itisthe rule of the eommon law, "that when any one prae- 
dees deceit upon another to his damage, the party injured shall 
have his antic for sueh a damage." Here the deceit practised, 
and the injury to the party deceived resulting from .t, constitute 
the eause of action. The deeeit and the damage must both exist; 
and where they do concur, no matter in what shape the deeeit 
may come, or through what devious paths it may be traced, or 
what the character and extent of the injury ; the remedy by action 
on the case applies. Hence, in the case of Pasley vs. Freeman, 
where the plaintiff being applied to for credit in mercantile trans- 
actions by a third person, the defendant represented to him that 
such third person might safely be trusted, he the defendant then 
knowing that he could not safely be credited, it was held by the 
court that the plaintiff, upon this general common law principle, 
might maintain his action against the defendant for such damages 
as he had sustained by reliance upon the letter's false and fraudu- 
lent representations. (4) Such actions are now very frequent; 
but that case, although decided as late as 1789, was then one of 
the first impression." The fact, that no such action had ever been 
attained, was strongly urged against its maintenance ,n that 
stance, and ,t was indeed held by one of the court to be novel, 
,„„„ in precede* and principle, because it did not appear that the 
defendant had any interest in the credit given, or colluded with 
,,„. „,-„,, pereon to obtain the credit for him; and that, therefore, 
lt mnB a „»ere false affirmation; butthe majority of the court held, 
that as the deceit and damage concurred, it came within the gen- 
iiral p^cipie, withotil reference to the interest of the party falsely 

atlirniing. 

1 1 3d Term Report*, . r >1. 



HO THE SOURCES OF [Intro. 

The reader, whose mind is imbued with the principles of the 
common law, will at once recal numberless instances to carry on 
these illustrations; but what has been said, will suffice to elu- 
cidate the character of the system, and to obviate objections, 
amongst the uninformed, to what are often considered judicial 
expansions of the law. Judicial legislation will now and then 
creep in, to relieve these principles from the narrowness of prior 
decisions, and to give them a more expanded existence ; yet it is 
rarely applied so as to produce injustice in the particular in- 
stance; and the novel principle soon becomes incorporated with 
the general mass, and is rendered definite and certain, or if in- 
convenient or incompatible with the general symmetry of the 
system, is soon lopped off as an excresence. When new prin- 
ciples are thus intervoven with our laws, although they may be 
the offspring of usurpation, there is at least one advantage in this 
mode of adapting our laws to new circumstances, or extending 
them so as to reach new exigencies, which makes some atone- 
ment for the usurpation. The adaptation comes from the hands 
of one, who has some acquaintance with the system he thus fash- 
ions, and who can perceive both the direct and collateral conse- 
quences of the change he introduces; and this cannot always be 
said of the amendments of ordinary legislation. Considered as a 
system of principles, which, by their simple yet comprehensive 
definitions, can attach themselves to acts and intents, cominc 
within the spirit of their provisions, whatever the new mode of 
being which such acts and intents may put on, the common law 
has, hitherto, in its efficacy presented a striking contrast to that 
of the statute law. The causes of the contrast will be principally 
found in the departure of the latter from the definition by general 
principles and intents, and the substitution for it of the definition 
by modes and circumstances. We cannot cite a better illustration 
of this, than that which is to be found in the history of the sta- 
tutes of Mortmain, the simple object of all of which was'to pre- 
vent the alienation of* lands to the all-absorbing clergy, whose 
ingenuity, prompted by their avarice and thirst "for dominion, for 
ages kept the statute law lagging behind them. And to come 
down to our own times, and our own State, we find one equally 
as striking in the history of our lottery laws. Since the adoption 
of the State Lottery system in 1817, until the present periodi 



Chap. III. I MARYLAND LAW HI 

scarcely a year has passed without some extensive amendment of 
the laws relating to it, for the purpose of preventing and punish- 
ing evasions of it, in the sale of tickets emanating from other 
svstems. Symbols, tokens and devices have been invented in 
every variety, as substitutes for the prohibited tickets ; and sup- 
plement upon supplement has been passed to reach each new 
mode of lirin TOteuS'like, llif >lc\ire has tak^n some new 

form, and the statute has fallen powerless. The error of most 
of these statutes has consisted in defining and describing the 
intent to evade these laws, by the modes in which the intent is 
accomplished, which modes, as has already been remarked, 
have no necessary connexion with the intent. The common 
law, in such a case, would have given a general, searching, and 
all-pervading definition of the intent, which would have power 
to insinuate itself into any disguise the latter might put on ; and 
this is the judicious course pursued by the recent act. 

With such advantages and capacities belonging to the com- 
mon law, it may well be questioned whether we should gain by 
the substitution of a code. The principles of the former are sim- 
ple and intelligible ; and in their past application to all the various 
concerns and transactions of society, they have been moulded 
into consistence with its exigencies, and into harmony with each 
other. The treatises and decisions which illustrate them, "with 
all their lights and shades," may indeed be voluminous; but the 
commentaries upon a written code, when its principles had been 
as extensively applied, would not be less so. Nor can any argu- 
ment against the former be properly collected from their occa- 
sional jarring and inconsistency. The system, which would be 
free from this, whilst applying any but mathematical truths, could 
not be the product of the human mind. So various are its ope- 
rations in different persona under different circumstances, that 
the samp premises \<ry frequently conduct them to directly 
opposite conclusions; and without the aid of precedent to direct 
and keep in conformity, differenl tribunals, iii the application of 
the same general principles to new casts, would Boon ereel very 
differenl systems of jurisprudence. Inconsistency may have 
crept into the precedents and binding decisions which we hare ; 

but to them we owe all the cerium! \ which W6 enjoy, and the ex- 
emption of our decisions generally from a state of chaotic coufii- 



112 THE SOURCES OF I [Intro. 

sion. Their general consistency with each other, through a series 
of ages, is truly remarkable ; and is but the consequence of a pro- 
per respect for precedent. It has given to our laws that degree 
of certainty in their administration, which lifts them up above all 
the improper feelings and influences that may surround any par- 
ticular case, which binds down the improper inclinations of the 
tribunal that may administer them by the fetters of impartial pre- 
cedent, and which makes the expositors of justice on the judg- 
ment-seat, as they should be, blind to all but the influences and 
authority of the law. Every age has proved the truth of the max- 
im, "ubi jus vagum, ibi misera servitus';" and the freeman has 
always found that the safety of his rights and liberties, consists in 
the certainty of the law which is over them. 

At the period of the Colonization of Maryland, the common 
law, and the various statutes which were declaratory of it, were 
regarded as the bulwark of English liberties ; and it was therefore 
natural that the colonists should jealously cling to them as the 
most cherished portion of their rights. Hence, we find that they 
were received and acted upon in the colony, from its very infan- 
cy. It is true, that in the first assembly of whose proceedings 
there is any record, viz. that of 1637, a discussion took place 
upon the question, " by what laws the colony should be governed," 
in the course of which the laws of England were proposed as the 
laws of the province, until some could be agreed upon by the pro- 
prietary and the colonists ; but it is evident from the causes and 
character of the discussion, that this question had relation only to 
high criminal offences. The proprietary in exercise of a power 
of originating and propounding laws, then claimed by him, had 
transmitted from England a body of laws for the adoption of the 
Assembly. These were rejected by the Assembly ; and the pro- 
vince was thus left without any laws of its own enactment. In 
this situation, the question was propounded ; and upon the laws 
of England being proposed, the governor, who was president of 
the Assembly, replied that he had power by his commission to pro- 
ceed in civil causes according to those laws, and also in all crimi- 
nal cases except those which extended to life or member. His 
reply shews, in part, what was the true rule of judicature in the 
province, and to what extent the common law was adopted 
for several years after the first settlement. Upon an examination 



Chap. III.] MARYLAND LAW 113 

of the instructions from the proprietary to his brother Leonard 

Calvert, the lieutenant governor, as contained in bis several 
commissions of l<> : >7. 1642, and 1(511, and of the rule of judica- 
ture as prescribed by the successive acts of 1639, chap. 2d, 
Kill. chap, fell, 1642, chap. 4th, and 1(51(5, chap. 2d, it ap- 
pears that the common law. as far as it was applicable, was in 
full force, and was adopted and acted upon, during the con- 
tinuance of these commissions and acts, in all cases, except 
where its operation extended tn the deprivation fit* life, member or 
freehold. Life, member, or freehold could not be taken away, ex- 
cfepl bj some express raw of the province.; but in all other cases, 
the common law , when not superseded by the laws of the pro- 
vince, was to be applied by the judges, so far as they found no in- 
convenience in it- application to the colony. The act of 1662, 
chap. -ii\. which toofc the place of the act of 1646, directed that 
when the laws of the province were silent, justice should be ad- 
ministered according to the laws and statutes of England, if 
pleaded and produced, "andthai oil courts should judge of the 
right pleading and inconsistency of the said laws with the good of 
the protinci . according to the best of their judgment, skill and cun- 
ning." Before the passage of this act, the institutions of the pro- 
vince, the process of its courts, and the forms of proceeding 
therein, were modelled upon the rules of the common law; and 
it was already interwoven with all that related to the rights and 
liberties <>f the colonists. This act of 1<5(5\!, whilst it still left it to 
the courts to apply the English law according to the wants and 
convenience of the province, dispensed with the exceptions of 
the antecedent acts, and made the existing common law the ul~ 
tiinnii guicL iii all cases: and it thus engrafted upon the juris- 
prudence of the province, the common law in mass, so far as it 
was applicable. This act soon ceased, and the rule of judicature, 
contained in it, was do' long established by express law of the 
province ; bul from thai moment, the commissions issued to the 
judges -auctioned n u a rule of judicature, and the common 
law became and continued to be a componenl pan of the laws 
of the province, until the overthrow of the proprietary govern- 
ment, and the ado] ti to <>f our present Btate constitution. It 
does not appear, from an examination of all the subsequent con- 

between the proprietary and the people of the province 

15 



114 THE SOURCES OF [Intro. 

about the extension of the English statutes, that these controver- 
sies ever drew into question the operation of the common law, or 
of the statutes which were merely declaratory of it. Some of the 
arguments urged, in the course of the discussions growing out of 
it, by the proprietary and the court party, (as his adherents were 
called,) if pushed to their full extent, would have justified even the 
exclusion of the common law. The colonists were likened to a 
conquered people, who were not entitled to the benefit of the laws 
of the conquering country, except so far as they were expressly 
extended to them. But these arguments were confined in their 
application, to the adoption of the statutes; and the operation of 
the common law seems to have been conceded on all sides. (5) 
Upon the adoption of our present state government, the 3d 
article of our Declaration of Rights, expressly declared, "That 
the inhabitants of Maryland were entitled to the common law of 
England and the trial by jury, according to the course of that 
law." — Thus it exists in Maryland in full force, in all cases where 
it has not been superseded or repealed by statute, and is applica- 
ble to the character of our government, and our condition as a 
people. In the case of the State vs. Buchanan, above adverted 
to, the effect of this general declaration was much discussed. 
That qase was a prosecution for a conspiracy, in the progress of 
which it was contended for the defence, that even if the law of 
conspiracy were admitted to be the creature of the common law, 

(5) The remarks in the text are justified by a thorough examination of all 
the discussions connected with the controversy between the proprietary and 
the Assembly, about the extension of the English statutes, which commenced 
in 1722, and was not terminated until 1732. A full history of the causes and 
results of this controversy is given in the conclusion of this chapter, from 
which it will appear that the proprietary's objections related solely to the 
statutes. In all the addresses and messages which passed between him and 
*he Assembly, we find that the operation of the common law is not only not 
denied, and therefore impliedly admitted ; but also that its admitted existence i% 
relied upon as furnishing analogies to sustain the extension of the statutes. 
A single extract from the address of the lower house to the proprietary, adopt- 
ed at October session, 1725, evinces its universally admitted existence : " But 
since (says that message) we mention the common law, we beg leave to observe con- 
cerning it, that we do not apprehend your lordship denies us the benefit of it, as being 
[by the common-received opinions of the best laicyers] allowed to be our right ; but 
His the statutes only you deny us." And relying upon this admission, the mes- 
sage then founds upon it an argument in favour of the extension of the statutes. 



Chap. HI-] MARYLAND LAW. 115 

it could no. be sustained in thecxtcnt necessary for that prosecu- 
tion by a resort to thelaW of conspiracy, as understood and illus- 
trated by the decisions of the English courts at the time of the 
colonization of Maryland: that the decisions of the English 
courts, since that period, winch had gone to the extent of the 
present prosecution, were expansions of the common law, new 
both in instance and in principle: that the common law, as intro- 
duced and adopted by the colonists, was the common law as ex- 
plained and defined at the tunc of the colonization, and not as it 
has since been expanded in England by judicial decisions; that 
the common law, m general, was not adopted in Maryland, ex- 
cept BO far as it was applicable to the condition of the province or 
state : that the proper test of its applicability was to be found in 
the fact of its having been used or practised upon in the province 
or state; and that in the particular instance before the court, as 
there was no precedent of any such prosecution in the provincial 
or state courts, it could not therefore be sustained. The prose- 
cution w:i>. n-t fi invaliding, sustained by the Court of Appeals, in 
a very elaborate opinion, which furnishes the proper and existing 
rule as to the operation of the common law. In the course of it, 
and in remarking upon the argument, that the later decisions 
were expansions of the common law, the court say, "It is a 
mistake to suppose that the decisions, subsequent to the charter, 
are expansions of the common law, which is a system of princi. 
pies not capable of expansion, but always existing and attaching 
to whatever particular eircumstaiices may arise and come within 
one or the other of them," and in adverting to the argument from 
non-user, they reply, " that as to the common lau , unlike a positive 
or statute law, (the occasion or necessity for which maj have long 
HBCfl passed by,) if there has been no necessity before for 
instituting such a proseewtion as the present, no argument can 
be drawn from the nom-user, for resting on principles which 
r , Iin „, become obsolete 1 , il has always potentially existed, to be 
a| , ,,,„., I M occasion Bhould arise," and, in conclusion, they pro- 
nounce the existing rule of application under the bill of rights, 
whirl, cannol be better stated than in the words of the opinion." 
m Tlie language of the U section of th, lulls of nights, (says the 
opinion,* u< declaring th* ntepUof Maryland entUled to the common 
law. has no reference to abjudications mi England anterior to the 



116 THE SOURCES OF [Intro. 

colonization, or to judicial adoptions here of any part of the common 
law during the continuance of the colonial government: but to the 
common law in mass, as it existed here either potentially or practical- 
ly, and as it prevailed in England at the time ; except such portions 
of it as are inconsistent with the spirit of our present government, 
and the nature of our ncio political institutions." (6) 

(2) Of the introduction and operation of the English statutes 
under the proprietary government. 

The preceding remarks upon the introduction of the common 
law, have already exhibited the rule of judicature and the opera- 
tion of the English laws in general within the province, previous- 
ly to the passage of the act of 1662, chap. 3d. The instructions 
to the governors, and the antecedent acts of 1638, 1641, 1642 and 
1646, drew no distinction between the common and statute law, 
nor even between the English statutes existing at the time of the 
emigration, and those subsequently enacted. Where they were 
to be resorted to, the English laws in general were adopted. The 
general rule as to civil cases was, that they were to be judged 
according to the laws and most general usage of the province ; 

(6j 5 Harris and Johnson, 357 and 358. — " The common law of England 
(says Chase, C. J. in delivering his separate opinion in that case) was adopted 
by the people of Maryland, as it was understood at the time of the declaration 
of rights, without restraint or modification. Whether particular parts of the 
common law are applicable to our local circumstances and situation, and our 
general code of laws and jurisprudence, is a question that comes within the 
province of the courts of justice, and is to be decided by them. The common 
law, like our acts of Assembly, is subject to the control and modification of the 
legislature, and maybe abrogated, or changed, as the General Assembly may 
think most conducive to the general welfare : so that no great inconvenience, 
if any, can result from the power being deposited with the judiciary to decide 
what the common law is, and its applicability to the circumstances of the 
6tate, and what part has become obsolete from non-user or other cause, 5 Harr. 
and John. 365. Jlnd again in 5 Harr. §• John. 3G7, he further remarks : "I consider 
the adjudications of the courtsof England, prior to the era of the independence 
of America, as authority to shew what the common law of England was in the 
opinion of the judges of the tribunals of that country, and those since that 
time to be respected as the opinions of the enlightened judges of the jurispru- 
dence of England." The opinion of the Court of Appeals in the case of 
Dashiell vs. the Attorney General, 5 Harris and Johnson, 401, is to the same 
effect. 



Chap. III.] MARYLAND LAW. 117 

and if these were wanting, then according to equity and i^ood 
Conscience; nol neglecting the rulea of the English law in simi- 
lar cases, -() tar as the judges w r ere informed of them, and found no 
inconvenience in their application. Criminal cases, in general, 
were to be decided according to the laws of province, if any in 
existence and applicable; and, if not, then by the laws <>r lauda- 
ble usages of England, in the same or similar cases. The excep- 
tions to theM' general ride.- were, that neither life, member nor free- 
hold were to be affected without some express, law ofjhe proyjnee. 
The act of 1662, chap. 3d, directed thai when the laws of the 
province were silent, justice should lie administered according to 
the laws and statutes of England, if pleaded and produced; and 
that the courts should judge of the right pleading and consistency 
of those statutes with the good of the province. Thus the laws 
of England, whether existing before or after the emigration, were 
made the ultimate rule of decision, applicable to all cases what- 
soever, so far as they were consistent with the good of the pro- 
vince ; and the judges were invested with the dangerous discre- 
tion of determining whether they were so consistent, and of ad- 
mitting or rejecting them according to their own views ; and thus 
was fully introduced and sanctioned that species of judicial legis- 
lation, to which we owe most of the English statutes now in force 
in our State. The power confided was not only dangerous, because 
of the discretion permitted to judges created by the proprietary, 
(whose views as to the statutes were generally antagonist to those 
of the people;) but also because it made these statutes a rule of 
conduct to the colonists, to whom they were not published, and 
to whom they might be entirely unknown, until they were plead- 
ed and produced. The general and constant anxiety, on the 
part of the colonists, to obtain the benefil of these statutes on any 
term-, and their willingness to confide any discretion w hich might 
contribute to the attainment of that purpose, evidence the high 
estimation in which they held the institutions of the parent coun- 
try, as conducive to the liberty and happiness of the subject. 

Its laws were a fountain from which they always wished to draw; 
and thence flowed to them those notions of civil and political 

liheriv. which thej collected and preserved in every moment of 
i mergency, both against the crown and the proprietary, and 



118 THE SOURCES OF [Intro. 

under whose nurturing influence their institutions ultimately ri- 
pened into the free and happy government under which we live. 
In the next year, another act was passed of the same import 
with the act of 1662, viz. the act of 16(53, chap. 4th, which appears 
to have existed concurrently with the act of 1662. At this period, 
and for some years afterwards, many laws were passed, which were 
neither assented to, nor dissented from, by the proprietary ; and 
although, in such cases, the laws endured until the proprietary's 
dissent was declared ; yet the Assembly, through abundant cau- 
tion, continued to re-enact them. The act of 1663 was at length 
dissented from by the proprietary, in 1669, and formally repealed 
by the general repealing act of 1676, chap. 2d. The proprietary 
was now personally present in the province ; and as from the 
want of definitive assent to, or dissent from many of the laws, 
there was some uncertainty as to those which were operative, 
this general act of 1676 was passed, which saves the act of 1662, 
and repeals that of 1663. By the general repealing and confirm- 
ing act of 1678, chap. 16, the act of 1662 was repealed, and that 
of 1663 revived, excepting only that clause of it which gave the 
judges the power of judging of the consistency of the statutes with 
the good of the province : and thus they became positive, although 
secondary guides in the decisions of the courts. In this State, the 
rule of application was kept up, until 16S4, by the successive 
acts of 1681, chap. 11th, and 1682, chap. 12th. 

As early as 1674, an attempt had been made to determine, 
by law, what criminal statutes of England were in force in the 
province ; and the object being approved of by both Houses of 
Assembly, a joint committee was appointed to report a bill for 
that purpose. After the act had been prepared, the Lower House 
insisted, that it should extend to civil as well as criminal cases, 
and that it should contain a saving of all the laws of the pro- 
vince not repugnant to the laws of England. The Upper House 
then took the ground, that mischievous consequences would 
flow from a general introduction of the English statutes, without 
a reservation of the power to judge of their consistency with the 
convenience of the province ; and, in consequence of the disa- 
greement between the two Houses, the object of the conference 
was not accomplished. (7) The act of 1678 having accomplish* 

(7) Upper House Proceedings, Liber FF, 220 and 245. 



Chap. III.] MARYLAND LAW. 1W 

edthe views of the Lower House, by introducing the statutes .in 
with outan, reservation as tp theii consistency, an, the 

BU 1 ,„,■„, continuing acts, having I-,- up th.s rule until the 

session of 1684, this subject of disagreement was revived by an 
act re l«tive to the rule of judicature, adopted by the Lower House 
, t ^ Bession, which proposed to continue the rule aasetried 
thr act of 1678i the proprietary, who was then in the 
pLnce, now took his stand in favour of the old rule of exten- 
sion: and in his message to the Lower House opposing the 
general introduction of thestatutes, he objected, that at wasnot 
:,,;. to have justice administered according to the laws o Eng- 
land when ^ laws of the province were silent, without due re- 
gard had to the constitution and present condition of the pro- 
;,„,: thai il appeared to him unreasonable, whilst the freemen 
fthe province possessed the powers of legislation conferred by 
thecharter, that they should be. concluded by such of the laws of 
,,,„,„„, M might run, them, or a. least be greatly injurious: and 
thai he was willing to assent to the general introduction of the 

statutes, if the judges were permitted to judg ' their, consisten- 

oy with thee in.,,, of the province, but not otherwise, Ihe 

Uwer House did not accord with him in his news, but main- 
^ed the ground which they had originally taken; and the con- 

sequence was, that the previous acts were suffered to expire. (8) 

J n I,;..) the government ofthe province was wrested trom him 

h- the Protestant Associators, and passedlfeence into the hands 

of the crown; and the government of Maryland then became 

and continued a royalgov* ent until 1715- During this a6ey- 

ance of the proprietarj government, the act of L692, chap, 
36 revived the rule of the act of 167S ; but this act, if it did not 
expire before, was repealed bj the general repealing act of 1700, 
,.,, ,.s : and no further legislation upon the subject took place 
duringthe suspension of the proprietarj government. let the 
Mt of 1882 had engrafted upon the jurisprudence of the province, 

the power of the. rts to give efficacy to the English statutes, so 

fcr as they were consistejitwitb the conditionof the province; and 
toexercis* of this power was kept up under the sanctions of the 
commissions issued to the judges, although the legislative .. 

mi Upper Hoo* Proceeding, LB>< r II', 709. 



120 THE SOURCES OF [Intro, 

tion was withdrawn. There was the less opposition to this, as 
the ohjections to the introduction of the statutes were personal to 
the proprietary, (who was unwilling to diminish the importance 
of his legislative veto,) and had therefore passed away with his 
government. During this interval, there are several instances of 
the exercise of this power on the part of the courts, in giving 
operation as well to statutes passed after the emigration, as to 
those passed before. (9) We find this illustrated, not only by the 
proceedings of the courts, but also by the messages between the 
two Houses, connected with the passage of the act of 1706, 
chap. 8th, expressly introducing the English statutes of 1st 
James 1st, chap. 11th, against bigamy, and the toleration act of 
1st William and Mary, chap. 18th, with all the penal acts therein 
mentioned. Before the passage of that act, the provincial re- 
cords shew several prosecutions for bigamy, predicated upon the 
statute of James ; and the message from the Upper to the Lower 
House, which gave rise to the act of 1706, sets forth that several 
persons had been presented in the provincial courts, and in 
Anne Arundel county court, for bigamy, and for suffering Quaker 
conventicles to be kept in their house; and that the justices- 
were at a stand as to these prosecutions, as it appeared to them 
that the statutes on which they were founded, were wholly re- 
strained to his majesty's subjects residing in England. It there- 
fore recommended either that these laws be declared to extend 
to the province, for the better satisfaction of the courts of justice, or 
that some laws be passed to restrain such offences. Towards 
the close of the royal rule, viz. in 1714, the subject was again 
mooted in a message from the Upper to the Lower House, in 
which they propose to ascertain the opinion of lawyers, as to the 
extension of the general statutes ; but no such enquiry appears 
to have been made, piobably because, in a very short time after- 
wards, the proprietary government was restored, and the question 
as to the extension of the statutes thereby assumed a new com- 
plexion. 

Upon the restoration of the proprietary in 1715, the old mo- 
tives for dissension were revived, and soon produced an open 



(9) Amongst these may be particularly mentioned the cases in 1707, upon 
the stat. 7th, Wm. 3d, regulating trials for high treason, aad those in 1711, 
upon the stat. 21st, Jac. 1st, relative to the murder of bastaE children. 



Chap. III.] MARYLAND LAW. 121 

conflict. The proprietary was unwilling thai the Btatutes should 
be introduced in mass, because he regarded their introduction as 
inconsistent with his righl under the charter, co-equal with that 

of the ti-ei u of the proi ince, to participate in the enactment 

or introduction of Jaws. The people on the other hand, were 
unwilling to restrict themselves by any particular enumeration of 
the Btatutes which they deemed applicable] and preferred either 
adopting them in mass, or leaving to the courts an unlimited 
power of introducing them in all cdses where they were cbtisis- 
tem with the good of the province. Such an enumeration might 
not only nave precluded or drawn into question the operation of 
some of the statutes \\ huh they prized most highly ; hut it u ouhl al- 
so, probably, have put a stop to the introduction, from time to time, 
of such statutes as might Be subsequent!} passed. The] preferred, 
therefore, to leave the door open for their introduction, when- 
ever the occasion might demonstrate thai they were for the ad- 
vantage of the colony ; and, in adopting this course, they pur- 
sued the di-cieet plan of the English parliament for the preserva- 
tion of their privileges, by keeping them indefinite, as a security 
against the encroachments of the crown. 

The controversy on this subject, between the proprietary and 
the people, was opened by the passage pf an acl al October ses- 
sion, l7- ,- 2. entitled : ' an acl for lite limitation of actions of trespass 
ami ejt chin ni;" and the direct cause of the controversy was a- to 
the extension of the English statute, 21st. Jao. 1st chap. Kith, the 
existence of which in the province had been denied by two de- 
cisions in the provincial court, (one in 1712, and the other ill 
171 I,) hut was recognised by this acl of I7\!\!. At this session 
the Lower House also adopted a series of resolves, vindicator) of 
their liberties, and exposing the grounds upon which thej claimed 
the benefit of the English statutes. These resolves are couched 
in forcible and manly language, and breathe thai spirit of m e- 
iloui, and that determination to maintain their liberties, for 
which the ('minimus of Maryland were ever remarkable. They show 
us in the Iniil the Banie tier and fearless -pint which bloomed in 
the times of the revolution; and they, in common with the reiri 
of our colonial history, teach us thai thai revolution did not-origi- 
nale but >m i, ly viudicalt 'I mn Win xties ■ ami that our landhas always 
inm freedom's favoured soil, Bj th< e resolves, the committee of 
16 



]22 THE SOURCES OF [Intro. 

aggrievances, (as it was called,) was clothed with the character 
of a committee of courts of justice ; and, as such, was required 
to examine the commissions issued to the judges and justices of 
the several courts, for the purpose of ascertaining what alterations 
had been made in them, and particularly in that part of them which 
required the judges and justices to hear and determine cases be- 
fore them, according to the laws, statutes, ordinances, and rea- 
sonable customs of England, and this province, and to report 
such alterations, if any, to the House. They declared also 
" that the province was not to be regarded as a conquered 
country, but as a colony planted by English subjects, who 
had not by their removal forfeited any part of their English liber- 
ties : that the inhabitants of the province had always enjoyed the 
common law, and such general statutes of England as are not re- 
strained by words of local limitation, and such acts of Assembly as 
were made in the province to suit its particular constitution as the 
rule and standard of its government and judicature ; such statutes 
and acts being subject to the like rules of common law, or equitable 
construction, as are usedby the judges in construing statutes in Eng- 
land ; and that all who advised the proprietary to govern by any 
other rides of government were evil councilors, ill-wishers to the pro- 
prietary and to their present happy constitution, and intended there- 
by to infringe the English liberties of the province, and to frustrate, 
in a great measure, the intent of the crown in granting it to the pro- 
prietary. " For the purpose ol preventing all misapprehensions as 
to the character of these resolves, and of presenting them in a 
manner calculated to conciliate the proprietary, they further declar- 
ed, " that they were not occasioned by any apprehension that the 
proprietary had ever infringed, or intended to infringe, the liber- 
ties or the privileges of the people, or to govern otherwise than 
according to the usage and custom of the country since its first 
settlement ; but were intended merely to assert their rights and li- 
berties, and to transmit their sense thereof and of the nature of their 
constitution, to posterity," 

These resolves, so characteristic of the firm and manly spirit 
of the people of Maryland, became "the Magna Charta" of the 
province. Although they sprang from this contest about the 
statutes, they did not cease with the occasion which gave them 
rise. Not only were they re-adopted by the Lower House, from 



Chap. II!.] MARYLAND LAW. 123 

time to time throughout the pendency of this contest; but also 
at many sessions of Assembly subsequent to its termination, even 
down to the period of the revolution. On all after occasions 
winch drew into question what they conceived to be their consti- 
tutional rights and privileges, or involved them in conflicts with 
the proprietary, because of the exercise, by him or his officers, 
of powers incompatible with their English liberties, the Provin- 
c.d Assemblies substantially adopted them as the exposition of 
their rights, and of the principles on which they maintained them. 
They were, however, of too bold and decided a character to re- 
ceive, at once, the sanction of the Upper House of Assembly, which, 
from its very constitution, inclined to the side of the proprietary : 
and, therefore, at this session of 1722, this House declined acting 
on them. At the session of September, 1723, the proprietary's 
dissent to the above mentioned act of 1722, was communicated to 
the Lower House. This dissent, which bears date the 19th March 
1722, (old Btyle) assigns as the reason for the rejection of the act, 
that it was not only explanatory of an English act not in force 
in the province, but that it also seemed, by implication, to intro- 
duce English statute- which had always been held not to extend to 
the plantations, unit ss by express words located there. "You are not 
only (says the proprietary in his instructions to the governor) not 
to permit any such practice to take place in Maryland, but even 
to discountenance any doubts concerning the same; and when 
any of the English statute laws are found convenient, and adapted 
to your circumstances, you ought specially to enact such of them 
as you in ay deem useful, and not by an act of the province intro- 
duce then: in the lump." 

The proprietary and the Lower House were now fairly at issue 
upon this important question; and a contest ensued, which en- 
dured for nearly ten yean. In the progress of it, the inhabitants 
of the province were divided into two parties, the one called "the 
court party," consisting of the immediate retainers and adherents 
of the proprietary, and the other " the country party,*' consisting of 
the Lower House, and the great body of the people ■ of the province. 
The papers emanating from the I. own- House during this period, 
i'i relation to thu subject, are characterised bj great abilit] and 

irch ; and the talent- of the province Were all enlisted on the 

of the people. Borne of these paper- are from the pen of 



1-21 THE SOURCES OF [Intro. 

the elder Daniel Dulany, a name which seems to have carried 
talent with it ineveiy generation. It would, perhaps, be difficult 
to sustain the positions taken by the Lower House, upon the 
generally received doctrine as to the extension of the statutes of 
a. mother country to its colonies, or upon any other ground 
than that of the long received practice and rule of judicature 
of the province. The people of Maryland did not intend to 
recognize the right of Parliament to bind them by laws, to 
which they had not assented. They studiously denied this 
on all occasions when that right was to be exercised in the im- 
position of burdens. They did not rely upon the right of par- 
liament to enact, but upon their own right to adopt and make 
their own, all such of the English statutes as might be found be- 
neficial, or protective of their liberties. The proprietary's dis- 
sent having put the Lower House fairly in the lists against him,'that 
house at once appointed a committee to inspect the ancient re- 
cords of the province, and to examine how far the laws and gen- 
eral statutes of England had been received in the courts of the 
province. At that session, a very elaborate report was made by 
this committee, after a full examination of the parliamentary and 
judicial records of the province, which sustains to the full ex- 
tent the right claimed by the Lower House. They report, " that 
1 n the earliest times, there were as many instances of decisions by 
the general statutes of England, {without any objection or opposi- 
tion,) as there were cases that could be affected by them, and a 
continuation of such decisions until the government was taken 
into the hands of William and Mary ; and that all the time the 
government continued immediately under the crown, as many 
cases both criminal and civil, as came within the province of 
the statutes, were determined by them ; which course has been 
continued ever since, to the restoration of the government to the 
proprietary, except in some particular cases when the circumstan- 
ces of this province rendered the form of proceedings prescribed 
by some acts of parliament impracticable, and where they have 
been altered by act of Assembly; the people always claiming and in- 
sisting on the rights and privileges of English subjects, and the laws 
of their mother country, as their indisputable right, and as agreeable 
to the charter." The report then sets forth a series of abstracts 
from the records, to evince the truth of its representations as to 



Chap. III.] MARYLAND LAW. 1 25 

the constant course of judicature in the province; upon which it 
remarks, M that, although many of the records were lost, in the 
time of the revolution, in removing the records from St. Mary's, 
and when the State House was burned) yet the collections which 
thef have made arc sufficient to show, that both the governors 
and the people governed, within the province, since its first set- 
tlement, or at least since there are any traces of Assemblies and 
judicial proceedings, have always deemed the general statutes of 
England to have the force of laws in Maryland." (10) Upon this 
report, an address to the proprietary was adopted by the Lower 
House, (October 21st, 1723,) in which they broadly asserted that 
the statute of limitations was in force in the province, because it 
was a general statute, without words of restriction, and therefore 
extended to all his Majesty's dominions, and because of the 
words of the charter securative of their English liberties. They 
allege, also, "that such statutes have; always been held to extend 
to the province, and that persons have even been convicted and 
executed under them; and that if their right to them were de- 
pend* ut upon their re-enactment in the province, they would 
then hold them by the precarious tenure of his pleasure, in yield- 
ing or withholding his assent." At the session of 1724, the Upper 
House, not yet having acted upon the resolves of 1722, their at- 
tention was called to them by a message of the Lower House, 
which reminded them, in sneering terms, of their default, and in- 
formed them that inasmuch as the oaths lately taken by some of 
the judges did not conform to those resolves, they bad directed 
the Attorney (Jem r d he being a member of their House) to pre- 
pare a proper form of BUCh oath. This form was accordingly 

prepared and transmitted to the Upper Souse for then- adoption. 

(10) It is mocb to be regretted, that the abstracts from the records, whieh 
made a part of this report, are not to be found ; the journals of 1723 are 
]...t, and tbe onlj record which we have of them is to be found in a printed 
collection of tbe mati rial parti of them, made und or of the Lower 

li ie in 1724. I Lion om^ that part of this report, for which it re- 

fers UY L (t contains, however, aj*eport made, October 

19th, 1724, ai I ins from 1692 down to that period, which 

evidenr.-s that during ill thai period, altbou rb the legislative rule of judica- 
ture wa» withdrawn, the commissions t" the judg< - until just befon 

icnt of the coni them to judg< according to the 

laws of England, where the laws of the province wen- silent 



126 THE SOURCES OF [Intro. 

It directed that the rule of judicature should be, according to the 
laws, statutes, and reasonable customs of England, and the acts 
of Assembly, and the usage of the province. It was ob- 
jected to by the Upper House, as permitting to the judges the ar- 
bitrary introduction of the statutes, without regard to the conve- 
nience of the province; and various messages were interchanged 
between the two Houses, in one of which the Lower House re- 
marks: "we have never yet heard of any inconvenience arising 
from doubts as to the extension of the statutes: nor did we ever 
hear of different judgments concerning the extension of any 
English statute, unless in one case concerning the statute of lim- 
itations, when one of your honors was one of the judges that 
filled the provincial bench; an J we cannot think that instance 
deserves your notice, since the opinion was grounded on no pre- 
cedent, and was manifestly contrary to the whole course of judi- 
cature in the province, and well known to be against the charter, 
and inconsistent with our constitution." The rest of this mes- 
sage, and the other messages of the Lower House in connexion 
with it, are couched in the same bold and expostulating language: 
and they ultimately led to an agreement between the two Houses, 
that the clause in the oath, as to the rule of judicature, should 
direct the judges to determine according to the laws, statutes, 
and reasonable customs of England, and the acts of Assembly, 
usages and constitution of the province. 

At the session of October, 1723, the address of the governor, 
in sustention of the proprietary's views, cited as illustrations of 
his doctrine the habeas corpus act, the statutes of usury, and 
the statute of frauds and perjuries, which, says he, have often 
been held not to extend to the plantations, and yet they are gene- 
ral laws. This elicited a reply from the Lower House, in which 
they entered at large into the general question, and into the consi- 
deration of the particular instances cited by him: and another act of 
Assembly was now passed in conformity with their original views. 
This act of 1725, chap. 1st, and the succeeding act of 1727, chap. 
1st, were both dissented from by the proprietary ; and at length, at 
the session of October, 1728, a form of a judge or justice's oath 
was transmitted by the proprietary to the province, and under 
his instructions submitted by the governor. This form directed 
that justice should be administered according to the acts and 



Chap. 111.] MARYLAND LAW. 127 

custom.* of the province; and, when these were silent, "accord- 
ing to the laws, Btatutes and customs of England, as have been 
used and practised i" the province :" and was unanimously re* 
iected by the Lower House, because it would exclude them from 
the advantage of future benefieial statutes, and would lend to 
endless dispute- as to what statutes had been used and practised 
upon. The question would be, says the reporl adopted by the 
House, " whether the act had been used or (which is the same 
thing,) whether any judgment given upon it: and Mich questions 
could not he determined in many cases, even when the statutes 
have been the foundation of the decisions ; since in many of them 
the reasons or arguments do not appear, nor is it customary to 
mention general statutes in pleadings, although the judgment of 
the court is founded on them." (11) Still adhering to their origi- 
nal views with some slight alterations to meet the views of the 
Upper House, another act was passed at this session, ascertaining 
the form of the oath, viz. the act of 1728, chap. 1st. This, also, 
was dissented from by the proprietary; and a new attempt was 
made at a compromise by the succeeding act of 1730, chap. 1st, 
which rendered operative the reasonable customs of England, and 
the statutes thereof, then or thereafter to be enacted, agreeably to 
the usage or constitution of the province. The proprietary re- 
jected this act also ; and a form was at last determined by the 
act of 1732, chap. 5th, which received his assent. This act, 
which prescribed the form of the oath of a judge or justice, as it 
continued from that period until the revolution, made the acts and 
usages of the province the primary guide ; and when these were 
silent, the rule of judicature then was, according to the laws, 
statutes, aad reasonable customs of England, as used am! proc- 
tiu (1 within tin province. 

The controversy thus terminated in partial submission to the 
will of the proprietary; but the Lower House had accomplished all 
their purposes. They had not only brought about a recognition 
of their right to such of the statutes as had been adopted in the 
practice of the province; but they had also couched this recog- 
nition in Mich general term-, a- to permit the future introduction 

of English statutes. The words "a used and practiced" in this 

(11) This report and the address which followed it, arc from the pen of the 
elder Daniel Dulany. 



12S THE SOURCES OF [Intro. 

act, might relate either to what had been the usage and practice 
of the province in adopting English statutes, as a practice 
.sanctioned and to be continued, or to the previous use and 
practice of these statutes as the test of their applicability : 
and even if the latter construction were adopted, the practice 
which was to give them efficacy, was not by the express terms of 
the act, a practice anterior to its passage but only to the time of 
the application of the statute as a rule of judicature. This sub- 
terfuge accomplished all its purposes : for from that period until 
the revolution, the courts continued to exercise the power of 
adopting and giving effect to such of the statutes as were accom- 
modated to the condition of the province without regard to the 
enquiry, whether they had been practised upon or enacted pre- 
viously to the act of 1732. 

Upon the occurrence of the revolution, and the adoption of our 
present constitution, the third section of the bill of rights, accom- 
panying it, declared "that the inhabitants of Maryland were enti- 
tled to the benefit of such English statutes as existed at the time of 
the first emigration, and were found applicable to their local and 
other circumstances ; and of such others as have since been intro- 
duced, used and practised upon in the courts of law and equity." 
This declaratory article, it will be perceived, has drawn a distinc- 
tion, between the statutes in existence at the time of the estab- 
lishment of the colony, and those subsequently enacted. The 
statutes of the first mentioned class, are declared to be in force 
so far as they had been found by experience applicable to the local 
and other circumstances of the colony; and those of the latter class, 
where they have been introduced, used and practised upon in our 
courts. However, both these tests of applicability consist in " the 
use of and practice upon the statutes." "It does not appear to 
the court (says the General Court in delivering its opinion in the 
case of Whittington vs. Polk) that there can be any other safe 
criterion by which the applicability of statutes, existing anterior 
to the emigration to our local and other circumstances, can be 
ascertained and established, but that of having been used and prac- 
tised under in this State." (12) Yet this test appears to be more 
comprehensive, than that which determines the applicability of 

(12) 1st Harris & Johnson, 250. 



Chap. III.] MARYLAND LAW. 129 

statutes passed since the settlement of the colony. The latter is 
expressly restricted to use and practice in the courts: whilst the 
former consists in that use and practice generally, which constitu- 
ted the experience of the colony. The General Court indeed, seem- 
ed to have considered the rule applicable to statutes passed before 
the emigration, as substantially the same with that applicable to 
statutes passed subsequently; and hence, in the case of Pancoast 
vs. Addison, they decided that the statute 32d Henry 8th, chap. 2d, 
sect on 2d, did not extend to Maryland, " the court not knowing, 
(say they,) of any judicial decision by which the same has been 
adopted and introduced into this State as the law thereof." (13) 
Yet there were many statutes of such a character, that they might 
have been used and practised under in the province without the 
intervention of courts of justice: and sucliuse would manifestly 
be a part of the experience of the colony. Judicial decisions 
are merely the evidence of its experience. (14) 

It is much to be regretted that the question as to the applica- 
bility of English statutes, should have been suffered to rest, until 
this day, upon the general tests of the bill of rights, without a full 
and definitive ascertainment of the statutes falling within the ope- 
ration of those tests. This condition of the question has given 
rise to doubts and controversies, which even now are not ex- 
hausted. To obviate these, in 1809 the legislature empowered 
the Chancellor and Judges ol the Court of Appeals, to ascertain and 
report the English statutes which were applicable under the tests 
of the declaration of rights, designating particularly such parts of 
them as it might be proper to incorporate into the statute law 6f 
the State. (15) This duty was wholly performed by the late Chan- 
cellor Kilty, in a report which arranges the English statutes from 
Magna Charta to the year 1773, into three several classes, the 
first embracing tin statutes not applicable, the Becond the statutes 
applicabU hut not proper to be incorporated, and the third those 
winch were both applicable and proper to be incorporated. The 
object in calling tor tin- report was to ascertain the latter statutes, 
so that thej might at once be specifically adopted to the exclusion 

(13) 1 Harris ami Johnson, 356. 

(14; See 3d Harris and Gill, 106, and :. Harris and Johns. 402. 

(15) A resolution of the same character was passed as early as lT'.u but 

from tome unknown cause it w.iv nrvrr carried into effect 
17 



130 THE SOURCES OF [Intro. 

of all other English statutes : but the report being made, this ob- 
ject was overlooked, and the Assembly contented itself with the 
publication and distribution of the report. (16) The only effect 
of this report has been, to collect from the colonial records, and 
the tradition of experienced lawyers, the evidences of practice 
upon the statutes : and as the repositonj of these, it is received 
and respected by our courts, and seems to be regarded by them as 
an authoritative guide in all cases of doubt. (17) Yet the exis- 
tence of a law should not even be a subject for doubt, and its en- 
actments should be accessible to all. The English statutes in 
force in this State, should therefore be definitely ascertained, and 
published at large under the authority of the State as apart of its 
statute law ; or they should be re-enacted, so as to give them a 
place in our ordinary statute book. In the plan for a digest of 
the statute law of Maryland, which was adopted by the legislature 
a few years since, and which is being accomplished, the proprie- 
ty of incorporating these statutes into it, does not appear to have 
been considered. This defect in the plan may yet be remedied 
by enlarging the instructions to the commissioners, as no part of 
that plan has yet been perfected. 

(16) Resolutions, 22d of November session, 1809, 20th of November ses- 
sion, 1810, 33d of November session, 1811, and 69 th of December session, 1816. 
A chart of the statutes applicable and proper to be incorporated has been com- 
piled and published by Alcceus B. Wolfe, Esq. of this city. This chart pre- 
sents this class of the English statutes in a natural and compendious form, 
which gives to the student or practitioner great facilities in his reference to 
them ; and if Mr. Wolfe, in a new edition of this chart, would but attach to 
his notice of each applicable statute, a reference to all the decisions of our 
courts since the revolution, which expressly or impliedly admit or assert the 
existence of such statute, it would be rendered still more valuable. 

(17) In the case of Dashiell vs. the Attorney General, 5th Harris and Johnson, 
403, Buchanan, C. J. delivering the opinion of the Court of Appeals remarks, 
" This view of the third section of the bill of rights raises the question, which 
of the statutes existing at the time of the first emigration had by experience 
been found applicable ? The only evidence to be found on that subject is fur- 
nished by Kilty's report of the statutes, in which the statute of 43 Elizabeth, ch. 
4, is classed amongst those which are said not to have been found applicable. 
That book was compiled, printed and distributed, under the sanction of Hie State, for 
the use of its officers, and is a safe guide in exploring an otherwise very dubious path.'" 
Upon the authority of this report the Court of Appeals therefore decided that 
this statute was not in force. See also the case of Koones vs. Madox, 2d Harris 
and Gill, 106. 



Chap. III.] MARYLAND LAW. 131 

The preceding remarks relate solely to that introduction or 
adoption of the English statutes in this State, which rests for its 
sanction exclusively upon tfu practice of the colony or its courts, in 
contradistinction to that which carried with it the sanction of express 
hue. .Manv of the English statutes were enacted expressly for the co- 
lonics, or expressly extended to them: and in such cases the sta- 
tutes were received and respected as laws of the colony, except 
M hen they entrenched upon the right of internal taxation, which was 
claimed by the colonies generally for sometime before the revo- 
lution, as their exclusive right. Others of the statutes were ex- 
pressly adopted by acts of the Assembly. These cases of legisla- 
tive extension or introduction of the English statutes are free from 
all doubt or difficulty : but those in which the statute acquired 
the force of law by mere practice upon it, demanded a full exami- 
nation of the origin and character of that practice. The English 
statutes thus introduced by colonial usage, and resting upon it 
alone for their efficacy even at this day, may truly be called "the 
common law of Maryland :" and the history of their adoption, 
whilst it illustrates their present existence, is at the same time 
a proud memorial of the firmness with which the colonists of 
Maryland always asserted and vindicated their liberties. 



HISTORICAL VIEW 



or THE 



GOVERNMENT OF MARYLAND. 



CHAPTER I. 

OF THE PROPRIETARY GOVERNMENT OF MARYLAND. 

The Proprietary Government, under which the colony of Mary- 
land was established and grew up, and from which it passed to 
its present rank of a free and independent State, is known to 
connection of the the P eo P le of Maryland in general, if at all, but by 
m'm'u' ^li'u'u- ,", f its name. They have heard of its existence, as 
me e nt n L,d g con r d"-' we hear of that of Prester John, or the wandering 
llon ' Jew: and they listen to the story of its being, as 

if it were a tale by-gone times, which to them, has nothing to 
excite interest, or even tempt curiosity. And yet it was the go- 
vernment under which a feeble and destitute colony of two hundred 
persons, planted in the wilderness at the mercy of the savage, has 
become the prosprrnii-. powerful, and independent State, where 
peace, plenty, and cultivation, are on every border, and there is 
scarcely a trace or tradition to tell, that it was once the red man's 
soil. Our citizens know not, nor do they in general seek to 
know, the structure and tendencies, of the institutions associa- 
ted with tlint government : am! yet they wire the mould in which 
our present state institutions have, for the most part, been fashion- 
ed, and from which they have derived many of those peculiar fea- 
tures, that give them excellence in our eyes at this day. They 
pause not to enquire into the origin «'f those principles <>f civil 
and political liberty, under the influence of which, at the aera that 
gave independence to theii State, their ancestors rose as one man 
in Tindication of their rights as freemen, and staked upon the 
issue which involved their liberties, their lives and fortunes also- 



134 THE PROPRIETARY [Hist. View. 

And yet if wc look back to the history of that proprietary govern- 
ment, we find in it the very seeds of those principles which anima- 
ted the fathers of the revolution in our State in the hour of danger 
and difficulty : and in the free institutions which were established 
under it, we recognize the school in which they imbibed their just 
notions, of the true object and proper extent of government, of 
their rights as individuals, and of their degree of dependence as 
a colony. In fine, all that relates to the colonial existence and 
condition of Maryland is intimately connected with the present : 
and if we would know the causes which so speedily converted 
her infant colony into a prosperous people, diffused over her 
whole surface, and in quiet possession of her soil with scarcely a 
single act of rapine or bloodshed to stain its acquisition, we must 
look for them not merely in the character and temper of her peo- 
ple, nor in the fertility of her soil. We must look beyond these, 
to the free nature of the government and its institutions, and to 
their gentle and benign administration, which invited popula- 
tion, and stimulated industry, by securing the civil and religious 
rights of the citizen, and freeing the products of his labor from the 
burdens and exactions of arbitrary power. 

Thus associated as the recollections of this departed govern- 
ment are, with all that exhibits our progress to maturity as a peo- 
utinty of the re- P^ e ar, d tne development of our free institutions, with 
belons'to the' his! all that appeals to our pride and awakens our grati- 
prietary 'govern- tu de, and with all that stimulates to the most jealous 
ment- care of the liberties preserved and transmitted to us 

through the difficulties of colonial dependence, they proudly claim 
to be rescued from the oblivion to which they have seemed doom- 
ed. In presenting to our view a people springing up by their 
own energies, in the midst of the wilderness, to independence, 
wealth and power, they remind us that we can more truly boast 
than did the Athenian ; "we sprang from the earth we inhabit." 
In identifying their infant struggles, and the transactions which 
mark their advance to maturity, with the land in which we live, 
and the scenes with which we are familiar, they people that land 
with the creations of the past, for the delight and instruction of 
the present. Associating these with the objects that are around 
us, then it is that we find, "tongues in trees, books in the 
running brooks, and sermons in stones." Such recollections 



Chap. I.] GOVERNMENT OF MARYLAND. 135 

carry with thorn all the enkindling effects of the Pagan theology, 

which made all nature rile with divinity or its ministers, and gave 
to every hill, or grove, or stream, its tutelary spirit. They animate 
every scene around us into a companion. They awaken new 
feelings and beget new associations to bind our affections to our 
own country. The experience of every individual attests this. 
We love to look, upon the places of our infancy, and to loiter 
amidst the scenes of our boyish recollections. The house in 
which we dwelt, the ground on which we sported, the plans of 
youthful enterprise, the objects of early affection, the very cradle 
in which we were rocked, all bring with them soft and mellow 
remembrances upon which memory pauses for instruction and 
delight. All things else may have faded to our eyes under the 
withering influence of time, but to us these ''flourish in eternal 
green," and if they are also the records of improving intellect and 
expanding virtue and honor, how proudly do we recur to them, 
in manhood to incite us to further improvement, and in the decline 
of life to smooth the downward way. Why should it not be so 
with nations? To them the cradle of their liberties, the scenes 
of their infant struggles, the theatre of their youthful enterprises, 
and the history of their advancement to maturity, bring recollec- 
tions equally full of pleasure and instruction. And yet the en- 
quiry into these is but too often deemed an idle curiosity, and the 
explorer is Bneeringly termed "on Antiquarian." 

There is a certain kind of national pride springing from a nation's 
history, which i> essential t<> its dignity, and eminently useful in 
Stnml effect of ' ,s advancement. "J'i> not the pride which springs 
Bfon'ta' eforafr "I"" 1 ,l "' ""' rH "' lnr departed like the shoots of a 
ter- d rtain fruit, where to use the lanjuaje of another 

"all that is fruit is under ground;" It is the pride which rests 
upon §elf respect, springing from the consciousness that we have 
preserved in all it- purity and integrity the eharactei transmitted 
to us by our ancestors, and inspiring us to a noble emulation 
of them by striving to give fresh lustre to die legacy. All who 
have observed the workings of such a feeling upon individuals 
and upon nations, have seen how il baa animated them to deeds 
worthy of i heir sires. In ranging through the historj of the most 
illustrious nation- of ancient and modern times, and m tracing 
tie causes of the achievements which have given them renown, 



136 THE PROPRIETARY [Hist. View. 

we find this proper national pride every where conspicuous. 
Whatever has illustrated and adorned the nation, becomes inter- 
woven with the national character; and the individuals of the 
nations, to a certain degree, feel and move as if they were clothed 
with that character. The bright examples of the past are before 
them, and under the recollections which belong to these, they 
act as if the spirits of their forefathers were hovering around them 
to behold their deeds. In moments of exigency they feel as he 
of old, when he exclaimed, "/ am a Roman citizen ;" and when they 
cease to feel thus, and the national character ceases to be respected 
and cherished, from that instant the national decline commences. 
With such proofs of the efficacy of national recollections in 
purifying and advancing a nation's character, we see at once 
Preservation of ^ ie importance of treasuring up and preserving all 
Mrtofitenati6i£ those portions of her history, which develope the 
ai duties. origin of her free and cherished institutions, and ex- 

hibit the causes of her advancement to wealth and power. These 
constitute her experience, by consulting which, and gathering from 
it the lessons of which it is fruitful, she may learn to avoid the 
errors whilst she follows the wise examples of the past. Then 
indeed history becomes : " philosophy teaching by example." To 
rescue from oblivion any facts connected with her history, which 
elevate her character, or mark her progress in the true principles 
of government, should therefore be the first effort of a nation, if 
she desires to sustain that character, or to give perpetuity to her 
institutions resting upon those principles. Such facts carry with 
them illustrations of public virtue and liberty, teaching by exam- 
ples of all others the most persuasive, the examples of those whose 
honor is our boast. Interesting and instructive as such portions 
of a nation's history in general are, they are eminently so with 
Peculiar utility of reference to that of these United States. United 

the colonial his- , , . , . . A , , 

tory of these Uni- under one government which is intended to pre- 

ted States in ill us- . • _ . 

trating the origin serve the unity oi the nation tor all national purpo- 

and determining 

the proper char- ses, whilst it at the same time preserves the free 

acler of our Fed- 
eral Government. an d independent existence and operation of the 

several state governments for all state purposes, the people of 

these United States, by this happy adaptation of the confederated 

system to the republics of the union, have accomplished, and 

carried into successful operation, a form of government which 



Chap. I.] GOVERNMENT OF MARYLAND. 137 

has outstripped oven the speculations of the political philosophy 
of former days. The happy combination of checks and balances, 
by which the several state governments are made to revolve in 
harmony around the national government, and the whole around 
the common welfare, has commanded the admiration of the 
world. By these concentric systems of government, simple in 
the midst of all their seeming complexity, and uniform in their 
purposes and results in the midst of all their diversified move- 
ments, each State commands for itself the protection of the whole, 
while! it still retains for its internal administration its entirety and 
independence and the power to maintain them. Alike most of 
the inventions or institutions which excite our wonder, this 
government was the creature of circumstances. It did not, like 
.Minerva, spring full grown from the brain of some philosopher 
or scheming politician. It was not a system formed in the closet 
upon mere abstracl speculations about government, and intend- 
ed to bend, and adapt to its theories, the character and condi- 
tion of the people for whom it was framed. It sprang from the 
u ants and necessities of the moment, and it took its features and 
complexion from the character and exigencies of the state govern- 
ment^ at tin' time of its adoption. These gave it being: and an 
intimate acquaintance with these is necessary, both to give us an 
insight into the origin of our present federal government, and to 
furnish us with the principles by which it is to be construed and 
applied. The system of confederation, which preceded it, and 
under which the State- achieved their independence, had paved 
the way to in adoption. Although the present constitution 
came to heal the defects of that system, yet the provisions and 
practical operation of the latter had familiarized the people to the 
— in and advantages of an union of the States, had indicated 
the true purposes and extent of thai union, and had taughl the pro- 
per mode of accomplishing it withoul affecting the integrily of 
the Si itc -. The history of the old confederation ii therefore the 
history of the present constitution; and thai confederation was 
adopted by distinct and independent colonies in their common 
struggle for freedom. Those colonies were planted at different 
periods, and under different auspices. They were established, 
and _r rew up, under form rnmenf rery various and in some 

install utially different. Thej were seated in different 

18 



138 THE PROPRIETARY [Hist. View. 

sections of a widely extended country, possessing very different 
resources, which at the same time rendered the pursuits and oc- 
cupations of these colonies very various and peculiar. This di- 
versity in the institutions and employments of the several colonies, 
impressed upon the inhabitants of each a peculiar character, 
which took its fashion from the former. With these diversities, 
so well calculated to impart different notions of political rights, 
to give different inclinations of feeling towards the mother coun- 
try, and to obstruct the adoption of a common government, we 
naturally ask " whence it was, that at one and the same moment, 
under the same claim of right and sense of duty, and with the 
same fearless spirit, they rose as one man against the oppressions 
of the mother country, and combined themselves for their common 
defence under one government, with as much ease and harmony 
as if union had always been familiar to them." The answer is 
to be found only in the history of the colonies. In the causes 
which led to their establishment, in their progress through all the 
privations and dangers of settlements remote from the parent 
and cast upon their own energies for protection and advancement, 
and in the general course and conduct of that parent towards 
them, without, reference to their distinctions, is found the key to 
our union. Through a long period of colonial existence, they 
were trained to freedom and familiarised to union by circumstances. 
By the force of these, they were fitted for the government before it 
came : and hence, when it came, it sat lightly and familiarly upon 
them : and their conduct, in the first moments of its adoption, 
was characterised by none of that spirit of anarchy and licenti- 
ousness, which often marks the first moment of actual emancipa- 
tion. Thus identified, as the histories of these colonies are, 
with that of our liberties and our government, as well as associa- 
ted with our proudest recollections, to us and to our posterity 
they ought to carry an interest "beyond Grecian or Roman story," 
which should put to blush the sickly affectation for foreign models. 

The limited nature and objects of the present work, so far as 
they relate to the History of the State of Maryland, have already 
Objects of this been disclosed. Pursuing these in the view which 

Chapter. wc are a bout to take of the proprietary government, 
we shall, in this chapter, examine the general nature of that gov- 
ernment, and its prominent features and tendencies, as established 



Chap. L] GOVERNMENT OF MARYLAND. 139 

by the charter of Maryland, or as developed or modified by its ac- 
tual operation, before we enter into the history of the condition 
and transactions of the province. 

The government of Maryland, aa established bj its charter, 
was culled " a proprietary government," in contradistinction i<» 
The three ffpncr- the other two general classes of colonial govern- 

al fornn ofeolo- . i i i- • • n 

nuy government ments, known by the distinctive appellations ol 
established with- 
in the English ''charter governments, and " roi/al governments." 

eol esofNorth ° jo 

Ainencu. These were the three general forms of colonial 

government existing amongst the English colonies of North 
America. There were, of course, peculiarities in the applica- 
tion of these forms to each colony: and the same form, as ap- 
plied to different colonies, was more or less favorable to the liber- 
ties of the colonists. Yet the genera] features belonging to each 
of these three classes, however different!] they might be applied, 
indicated a manifest distinction in point of benefit and privilege 
to the colonists. The royal governments were so called, because 
the colonies subject to them were under the immediate rule and 
administration of the crown : and depending, as these colonies 
did, not only for the appointment and dispositions of their rulers, 
but also, at some times, for the very security and continuance of 
the form of government under which they lived, solely upon the 
will of the crown, this form of colonial government was therefore 
always esteemed the least favorable to the people. Nor was 
the experience of the colonies calculated to change their impres- 
sions as to the tendencies of this form : for the royal administra- 
tion was generally characterized by misrule and rapacity on the 
part of the governors, and by a steady and unremitting opposi- 
tion to the colonial interests and liberties whenever these came 
into co nil ict with the designs of the crown. The charter govern- 
ments proper wire those, in which the interna] administration was 
entirely in the hand- of the colonists themselves. The charters 
of Rhode-Island and Connecticut are specimens of the pnre char- 
ter government. They earned with them power- ofself-govei 

men! and internal regulation, which rendered them actual de- 
mocracies. The charter governmenl of Massachusi tta, i special- 
ly as modified by its charter of 1691, was of a more mixed char- 
acter: yet it belongs properlj to this class. Its supreme execu- 
tive power was administered bj ernor appointed bj the 



140 THE PROPRIETARY [Hist. View. 

crown, who had also a veto upon its laws. The legislative pow- 
er was in the hands of the people : and they had a further check 
upon the governor in the executive council, which was elected 
by the assembly. The charter governments were therefore 
always regarded as the most favorable in point of political privi- 
lege and power ; because they had all the sanction and security 
for their continuance, which a charter from the crown could give 
them ; and because the forms of government so secured, were 
either such as had been previously adopted and acted under by 
the colonists themselves, or were framed in conformity to their 
own wishes and suggestions. Such were the charters of the 
New England settlements generally: and this their character, 
familiarising those subject to them to all the rights of self-govern- 
ment and the duties of self-dependance, acquainting them by 
actual enjoyment with the benefits of a free government, and in- 
spiring them with a freeman's spirit to maintain it, informs us, 
why it was, that New England was the cradle of American liber- 
ties, and that in all the contests with the crown for the general 
rights of the colonies, she was amongst the first in the onset, and 
the last in the retreat. 

The proprietary governments were those, in which the charter 
granting territory, conferred upon the grantees, the jurisdiction over 
the territory granted, and the right of governing the people settled 
within it : and they were therefore of a mixed nature, blending some 
of the advantages of the pure charter governments with some of the 
disadvantages of the royal governments. They had the security of 
the former against the aggressions of the crown : but, as in the lat- 
ter, the government emanated from a power distinct from, and in- 
dependent of, the people subject to it. Some of these proprietary 
charters of the more favourable kind, secured to the colonists a 
Peuiiar advanta- participation in the government, which extended to 

ges of the most 

favorable forma a full and free share in the legislation of the colony, 

of proprietary 

government. and to exemption from all taxes and impositions not 
levied by their assent; and when this was their character, they 
were almost as beneficial in their operation as the charter govern- 
ments, and were more secure. The government under these 
charters being in the proprietary, the crown had no concern with 
the internal administration of the colony ; and did not necessarily 
become a party to the contests between the proprietary and the 



Chap. I] GOVERNMENT OF MARYLAND. 141 

people, about their respective rights and interests in that admin- 
istration. It was not Identified with the rule of the proprietary; 
as it was with that of its governors in the royal governments. 
The rights of the proprietary were entirely distinct from those of 
the crown, and did nol necessarily involve the interests of the 
latter. On the other hand the jealousy of the crown was always 
excited against the proprietary powers and prerogatives, when 
they acquired rank and consequence from the growing wealth 
and population of the colonies over which they were exercised. 
As branches of royalty, which detached from the crown, and 
placed beyond its reach, the control of the government and reve- 
nue of the colony, they were, at some periods, looked upon with 
scarcely less aversion than the rights secured by the charter 
governments: and the government of England would, at times, 
have been willing to enlarge the privileges of the people as 
against the proprietary, that they might become instruments in 
the subversion of the powers of the latter, as those of the commons 
of England had been, in the hands of the king at an earlier day, 
for the prostration of the overweening arrogance and power of 
the barons. The attempts made to subvert these governments 
generally, to which we shall hereafter advert, however disguised, 
were but the offspring of this jealousy. Hence the contests con- 
nected with the internal administration of these governments, 
were, in general, conducted entirely between the people and the 
proprietary: and the influence and power of the crown were not 
brought to bear upon the interests and liberties of the people, ex- 
cept when they were supposed to entrench upon the eminent do- 
minion and reserved rights of the mother country, or to conflict 
with the colonial dependence which these entailed. 

The charter of .Maryland exhibits to us the iuo-t favorable 
Tho proprietary form of propriet a r v government. The privileges 

guVrrilllM-lil lit ' . 

Mnr>iatnl of tiic which it conferred u pon the Colonists, and its benig- 
ni'-t favorable 

form. nam provisions for the security of their rights and 

liberties, account to Qfl at once for its continuance until the re- 
volution, for the high estimation in which it was always held 
by the people, and the care ami anxietj w ith which they clang to 
it when ii- existence was endangered. It wai One oi the earliest 
charters emanating from the English crown, and surviving the 
general wreck of the proprietarj governments; although suspend- 



142 THE PROPRIETARY [Hist. View: 

ed at two periods for a considerable time, it held on its existence 
until the American revolution, when of all the proprietary gov- 
ernments which were created before or after it, there existed with 
it none but that of Pennsylvania. The similar governments es- 
tablished by the charters to the London and Plymouth Companies, 
were of short duration. That of Virginia was extinguished in 
1624, before the grant of the charter of Maryland: and the Ply- 
mouth charter was surrendered in 1635. The proprietary gov- 
ernments subsequently established, with the exception of that of 
Pennsylvania, had but a short career, and that characterised by 
continual dissensions between the people and the proprietaries, 
or amongst the proprietaries themselves, which either led to a 
voluntary surrender of their charters by the latter, or to the revo- 
cation of them by the crown as productive of nothing but discord 
and misrule. 

The charter of Maryland was in a great measure free from the 
elements of strife, which entered into most of the other pro- 
Advantages re- prietary governments, and which commencing to 

suiting from the , . r . . , 

grant of Mary- operate with their first organization soon occasioned 

land to a single . , _1 , . r . 

proprietary. their downfall. Under the former the grant was 
made but to a single proprietary, whilst in the latter there were 
several grantees ; and in some instances, as in the grant to the 
London and Plymouth Companies, they were very numerous. 
The advantages of the former over the latter in this respect are 
evident. When the ownership and government were deposited 
in one hand, there was generally an unity of purpose and action, 
and a freedom from all those dissensions which ever arise when 
common and undivided rights and interests are to be administer- 
ed by several proprietors. In such cases as the latter, the views 
of the several proprietors will differ : and each will endeavor, 
not only to give effect to his own views, but also to administer 
the common interests with a view to his peculiar benefit. This 
was not only the tendency, but also the actual experience of these 
governments, when allotted to several proprietors; arid this re- 
sult is nowhere more conspicuous than in the short career of the 
proprietary government of New Jersey. And although the har- 
mony and unity of purpose incident to such governments, having 
but a single proprietary at their head, might seem to have facili- 
tated, and to have given a steadiness and energy to their designs 



Chap. 1] GOVERNMENT OF MARYLAND. 143 

upon the liberties of those subject to thorn; yet when the- propri- 
etary governments were administered with the spirit of rapacity 

and misrule, it was always found, that the people wore more op- 
pressed by them when they were under the direction of seve- 
ral proprietaries. In their operation, the force of the old maxim, 
"that one tyrant is /utter than many" was fell in all its truth. 

The governments of .Maryland and Pennsylvania, with all their 
imperfections, were yet singularly free, mild, and beneficent in 
Than idvanta- their operation, when contrasted with the other 

ges illustrated in 

in. bUtoriei of proprietary £ovcmments. Much of this was, no 

Marvland ami 

Paaaaylvania. doubt, due to the liberal views and benevolent pur- 

poses of their founders, and to the cautions and securities against 
oppression embodied in their charters: but some of it is properly 
attributable to the consideration that they were always vested in 
one hand or in one family. These provinces becoming thus the 
patrimony of these families, their honor and interests were identi- 
fied with those of their proprietaries. The proprietaries stood to 
them in the relation of a "pater-familias," and could not but feel 
interested in the growth and prosperity of their respective pro- 
rinces, which were not only to illustrate and perpetuate their 
Dames, hut also to -well the consequence and wealth of their 
families. The same feeling did not and could not exist to the 
same degree, where there were several co-proprietors of different 
families. Their views were not only different, but they were also 
more circumscribed by their immediate wants and interests; 
and they did not feel and act for posterity, under the same gene- 
rous pride which animated those, who held their province as exclu- 
sively tin- patrimony of their families, and upon whose name and 
character it- wealth and prosperity were to be reflected. 

The history of these governments sustains these news. For 

ill. contrast, n is not necessary to go back to the administration of 
the proprietary government of \ irginia, under the 

tii... proprietary 

lovtfrnmenuora London ( ompanv, when, it mav be -aid, the nrinci- 

alflerentdetcrip- \ ■ , , , , 

unn. pic- c.i colonial government were but little under- 

stood. Those of New Jersey anil of Carolina, which were erect- 
ed after that of Maryland, and but shortly before the grant to Penn, 
and which were distinguished from the grants of Pennsylvania 
and Maryland in being granted to several co-proprietors, were 
characterised bj dit ensionc amongsf the proprietors, and by an 



144 THE PROPRIETARY [Hist. View. 

administration at war with the feelings of the people and the true 
and permanent interests of the colonies. The unfortunate ten- 
dencies of such a short-sighted policy, as to the interests of all 
concerned,- were soon followed by correspondent results. The 
proprietary charter of New Jersey was surrendered to the crown 
as early as 1702; and that of Carolina, after struggling through a 
proprietary existence of about half a century, which was marked 
by continual outrage and oppression on the part of the proprietors, 
and by general, constant, and increasing dissatisfaction amongst 
the colonists, was at length formally repudiated and shaken off 
by the latter, and the colony, by its voluntary act, placed under the 
immmediate government of the crown. 

Whilst therefore the charter of Maryland, from the manner 
of its grant, tended to promote the proper administration of its 
government, and the permanent interests and prosperity of the 
colony; its comparatively liberal provisions in favor of the colo- 
nists were admirably calculated to second this tendency. This 
will be apparent from the view of its general features, as illustra- 
ted and modified in the progress of the government. The legisla- 
tive power of the province, under the charter, extended generally 
to all the objects of legislation within it, subject only to the re- 
Extent and dfe. striction : "That the laws enacted should be con- 

tnbution of the »*^»«» 

legislative power sonant to reason and not repugnant nor contrary to 
under the charter J 

of Maryland. but (as far as conveniently might be) agreeable to 
the laws, statutes, customs and rights of the kingdom of England :" 
and to all persons being within the limits of the province or under 
its government. The laws were to be enacted, by the proprieta- 
ry, "by and with the advice, assent and approbation of the majority 
of the freemen of the province or of their delegates or deputies." 
The participation of the people in the legislation of the province 
being thus secured, the assemblage of them for the purpose of 
legislation, was left under the charter to be regulated, as to its 
time and manner, exclusively by the proprietary. As soon as the 
government was organized, and an assembly of the freemen con- 
vened, differences arose in the construction of the charter, as to 
the relative rights of the proprietary and the people. The pro- 
prietary seems to have held, that the power of originating and pro- 
pounding laws resided exclusively with him ; and that the assem- 
bly had nothing more than the simple power of assent or dissent. 



Chap. I.] GOVERNMENT OF MARYLAND. 145 

Their participation in legislation, as then expounded by him, was 
analogous to that of the senate under our present constitution, in 
the passage of money bills. Acting under these views he rejected 
in mass the laws which were passed at the session of the first as- 
sembly held in the province ; and as substitutes for them, he caused 
to be prepared and transmitted from England, a body of laws for 
adoption by the next assembly. The colonists, on the other hand, 
considered their power "of advising, assenting to, and approving 
laws," as conferring upon them equal and co-ordinate rights with 
the proprietary; and hence, at the next session of assembly, con- 
vened on the 25th January, 1637 (old style,) they returned the 
compliment, by rejecting in mass the laws which he had pro- 
pounded. The freemen were successful in their opposition to 
the exclusive right claimed by the proprietary ; for from that period 
their right to originate laws does not appear to have been seri- 
ously contested. But notwithstanding this concession, the pro- 
prietary, in the early years of the province, still claimed, and oc- 
casionally exorcised similar rights, as a co-ordinate branch of the 
legislature; but these occasions were very rare, and in the ordi- 
nary course of the legislation of the province, his powers were in 
practice limited to his veto upon the acts of the assembly. 
Throughout the proprietary government, the full veto power was 
always retained in the person of the proprietary. The commis- 
sions and instructions to the governors of the province, gave 
them, in general, the right of assenting to or rejecting laws; but 
this assent, when given, never concluded the proprietary, except 
in cases where he had specially authorised the governor to assent 
in his name to a particular law. The only effect of the gover- 
nor's assent was to give efficacy to the laws so assented to, until 
the proprietary's dissent Was declared, and when this was declar- 
ed, they ceased to operate. The governor had the general pow- 
er of giving to laws this partially operative assent, subject only to 
such modifications and restrictions as were specially imposed by 
his commission and instructions. The limitations, which were 
from time to time imposed by these, will appear, when we come 
to t rent of the particular organization of the provincial legislature. 
The general views here riven suffice to shem the actual distribu- 
tion of the legislative power, and the ordinary modes in which it 
; ed. 
19 



146 THE PROPRIETARYi [Hist. View. 

The charter having referred to the proprietary the exclusive 
right to convene assemblies, and to determine the time and man- 
Controi of the ner °f convention, the power of convening, adjourn- 
tlip'farma^ide" in g> proroguing, and dissolving the assemblies at 
iwmwfeBandhow his pleasure, always belonged to the proprietary, 
modified. an( j wag d e ] e g a ted to, and exercised by the govern- 

ors of the province, throughout the whole period of the govern- 
ment. This general right carried with it another power, the im- 
proper exercise of which might have been attended with very dan- 
gerous consequences to the co-ordinate rights of the people. The 
proprietary under it possessed, and for a long time exercised, the 
exclusive right of determining the manner in which the assembly 
should be constituted. The warrants for convening the assem- 
blies issued by the governors during this period, determined whe- 
ther they should be convened in person or by deputies ; or, if by 
deputies, the number of deputies to which they should be entitled, 
and the manner in which these should be elected. If vacancies 
occurred, the propriety and mode of filling them up were deter- 
mined by the same discretion. The people's participation in le- 
gislation might have been rendered of but little avail by this un- 
limited discretion, on the part of the proprietary and his govern- 
ors, to regulate the manner in which the assembly should be con- 
stituted. But the usage of the governors, and the legislation of 
the province, soon restrained this discretion, or corrected its ten- 
dencies. The operation of these upon the particular organiza- 
tion of the legislature, at every period of the proprietary govern- 
ment, will appear hereafter. For the purposes of this general view 
it is sufficient to remark, that from the convention of the first as- 
sembly of the province until the government passed into the hands 
of Cromwell's commissioners, there was no determinate and uni- 
form mode of convening assemblies. The freemen were sum- 
moned to attend, sometimes in person or by proxy, sometimes in 
person or by proxy or by deputies, sometimes by delegates or 
deputies only, and sometimes by a general direction to attend 
without prescribing the mode of appearance. These were the 
various modes of convening the freemen generally ; but through- 
out this period there were always writs of summons, which were 
specially directed, in the discretion of the governor, to the coun- 
cillors and other high officers of the province, and also on some 



Chap. I.] GOVERNMENT OF MARYLAND. 147 

occasions to other persons of trust and distinction. Vet although 
there was no uniform mode of convening assemblies generally, 
the manner adopted lor the formation of any particular assembly, 
■was uniform, and impartial in its operation. The particular form 
adopted for the organization of any assembly, applied to the in- 
habitants of the province generally, who were thus placed upon 
an equal footing in point of privilege. After the restoration of 
the government to the proprietary, in 1658, by the protector's 
commissioners, the right of appearing in person or by proxy 
wholly ceased. From that period the distinct organization, and 
independent existence, of the Upper and Lower Houses of As- 
sembly, which had been established pro hoc rice at the session of 
1650, became permanent: and under this permanent establishment, 
which endured by usage or law until the American levolution, 
the Upper House consisted of the councillors to the governor, 
and the Lower House of delegates, elected by the people of the 
several counties. Under this system of county representation for 
the Lower House, which superseded the old system of represen- 
tation by hundreds, the manner of election, and the number of 
delegates to be elected by each county, continued to be regulated 
from VioS until L681, by the warrants of election issued for each 
assembly. But throughout this period, with a single exception, 
the warrants uniformly authorised each county to elect two, three, 
or four delegates ; and after such election notified to the gover- 
nor, it was usual to summon the persons elected by special writ. 
The proprietary's ordinance of 6th September, Kisl, reduced 
the number of delegates to two for each county ; and proscri- 
bed a permanent and uniform rule as to the qualification of 
the voters and the manner of election. The proprietary hav- 
ing been divested of the government of the province in 1689, 
(which shortly afterwards fell directly under the immediate 
administration of the crown, as other royal governments) the 
organization of the Lower House was settled by the act of 
L692, chap. ?<>, and continued to be regulated by law, until the 
adoption of our present government, l>\ the succeeding acts of 
17ut, chap. 35, I T < * — , chap. 5th, I7I">, chap 12, and 17 16, chap. 
11. Under these acts, which all agree in this respect,) the same 
equal and uniform righl of count] representation, which now 
exists, was permanently established. Each county was entitled 



\4S THE PROPRIETARY [Hist. View. 

to elect four delegates : and the qualifications of voters and dele- 
gates were established by a permanent and uniform rule. 

From this summary view of the organization of the provincial 
legislature, it will appear, that their right under the charter to par- 
ticipate in legislation, was at all times enjoyed by the inhabitants 
General results of the province: and that the several systems of re- 

of the legislative . , 

power. presentation, which prevailed in the colony, were as 

full of liberty and privilege to the subject, as those of the mother 
country, or of the greater part of the colonies. They had indeed 
their alloy. The existence of the Upper House as a co-ordinate 
branch of the legislature, constituted one of their most objection- 
able features. It had all the disadvantages without the advanta- 
ges of the House of Peers. The latter, if it is independent of 
the people, is also independent of the crown : but the Upper 
House of the province, consisting of councillors, appointed by 
the proprietary or under his commissions, and dependent for their 
offices upon his pleasure, was, from its very organization, an aris- 
tocracy of the worst possible kind, an aristocracy wholly indepen- 
dent of and irresponsible to the people, and at the same time the 
mere creature and dependant of the proprietary. With a consti- 
tution so antagonist to public liberty, it is truly surprising that 
the transactions of this House should have displayed as much re- 
gard for the rights and liberties of the colonists, as they frequently 
did. The power to convene, prorogue, or dissolve the assemblies 
at pleasure, had also a tendency to diminish their independence; 
but the abuse of this power for the purpose of checking or put- 
ting down any of the favorite measures of the people, was always 
followed by consequences which rendered it harmless. Instead 
of driving the people from the ground which they had taken, its 
effect was only to rally them more effectually and firmly for the 
accomplishment of their views, to which they generally succeed- 
ed in bending the will of the proprietary, or his governor. The 
legislative records of Maryland furnish us with several instances, 
in which this executive right appears to have been used for this 
purpose ; but the people's firmness generally frustrated this de- 
sign. The executive veto sustained, by its control over the exis- 
tence of the assemblies, and by the subserviency of the Upper 
House, at times militated against the views and interests of the 
colonists at large ; but it was never enabled to prostrate these 



Chap. I.] GOVERNMENT OF MARYLAND. 149 

through the instrumentality of legislation. The constitution of 
the Lower House always interposed an effectual bar to the legis- 
lative oppression of the province. In it the people <>f the pro- 
vince always found a faithful guardian and ready asscrter of their 
rights. 

It is somewhat remarkable thai throughout the whole colonial 
existence of Maryland, the history < H' its legislation does not ex- 
hibit a single instance of treacherous or timid abandonment, by 
this House, of the rights and interests of the colony. Pursuing, 
in the general tenor of their conduct, the happy medium between 
the arrogance of power and the servility of submission, they were 
the vestal preservers of liberty in every age of the colony. The 
consequence was, that this uniform yet temperate adherence to 
their rights, even whilst it encountered the resistance, seldom pro- 
voked the serious indignation of the proprietary: and the good 
correspondence between the government and the people being 
thus preserved, the colonial history of Maryland exhibits one of 
the finest specimens of colonial administration. Alike the other 
colonies, it had its moments of discontent, its internal dissensions, 
and even its revolutions, which for a time prostrated the proprie- 
tary dominion: yet these were of but short duration, when com- 
pared with the long intervals of tranquillity and contented pros- 
perity. The legislative acts and addresses of the colony, at al- 
most every period of its existence, abound with expressions of 
their attachment to the proprietary government, and with grate- 
ful acknowledgments for the gentleness of its sway, and its con- 
stant endeavors to promote their interests. When separated 
from it. they Boon looked back to it and Bighed for its restoration : 
and its return was received with every demonstration of general 
joy. 

The proprietary's power to pass ordinances without the con- 

Nnture of the Ciirrencc of the assembly, appears to h;ive been ro- 

K°»S» o?S P^ded b J ,ll( ' charter, as a branch of the legislative 
nancM - power. The recitals, which precede its grant, seem 

to have contemplated the exercise of it, as an <ul interim legisla- 
tive power: buttle- restrictions imposed upon it by the charter 
and the usages ofthe colony, gave it a very harmless and limited 
operation. Under it, the proprietary was authorised personally, 
or through his officers, " to make and constitute wholesome ordi- 



150 THE PROPRIETARY [Hist. Yiew 

nances from time to time, (to be kept and observed within the 
province,) as well for the conservation of the peace as for the 
better government of the inhabitants, to be publicly notified to all 
who were to be affected by them : provided that these ordinances 
were consonant to reason and not repugnant nor contrary to but 
(as far as conveniently might be) agreeable to the laws, statutes 
or rights of the kingdom of England, and that they did not in any 
sort extend to oblige, bind, charge, or take away the right or inter- 
est of any person or persons, of, or in member, life, freehold, 
goods or chatties." 

Thus restricted, it was nothing more than a mere police-power, 
stripped of the means of oppression to the subject, which never 
Extent of its ac- cou ld usurp the proper place or rank of legislation, 
tuaiexercise. an( j t j ie exerc i se f it within the province was,. in 
general, conformable to this, its restricted nature. It was, on one 
or two occasions, exercised as an embargo power: and it was 
frequently resorted to, in establishing or remodelling the offices 
of the province, under the general and exclusive charter-right of 
the proprietary, to create these and to prescribe their duties. But 
whenever the ordinances passed beyond this their legitimate 
sphere of action, and attempted to attach fees and emoluments to 
these offices, or to determine their quantum, they were always re- 
sisted by the colony as manifest usurpations. The only material 
or serious controversy which ever arose in the province about the 
exercise of this ordinance power, related to proclamations of the 
latter kind. The fees of the officers were generally regulated by 
acts of assembly : and it was always held by the Lower House of 
Assembly, that this was the only legitimate mode in which they 
could be given. On two occasions the fee-bill, as it was termed, 
was suffered to expire ; and during the intervals between the ex- 
piration of the old law, and the enactment of a new fee bill, the 
governor established the fees by proclamation, adopting as his 
general guide the rate of fees as established by the expired act. 
In both of these instances the ordinance power was used merely 
as an ad interim power. The acts of assembly regulating fees 
had ceased : and without its interposition, the officers would have 
been left without any fixed compensation for their services. The 
tendency of this state of things was, to throw open the door to 
extortion or corrupt practices on the part of the officer: and the 



Chap. I.] GOVERNMENT OF MARYLAND. l")l 

proclamations, in correcting this, at the same time facilitated the 
transaction of business in the offices. They were not intended 
to usurp the place of legislation: for they were only to endure 
until a new act was passed. Yet whh all these palliating circum- 
stances to excuse, if not to sustain these proclamations, they were 
. l!w , V s regarded and resisted by the Lower House as acts of gross 
usurpation and oppression. They were held not only to transcend 
the ordinance power as defined by the charter, but also to violate 
foe exemption of the colonists from all taxes and impositions 
whatsoever, except those which Were fixed by act of assembly. 
This exemption had been declared and confirmed by the early 
act of L65Q, -hap. 25; and was regarded as a right too sacred, to 
be drawn into question, or indirectly violated, even for benen- 
cial purposes. The last of these proclamations, and that which 
gave rise to the most serious controversy, and to the most tho- 
rough examination of the power, was issued in 1770; and the his- 
tory of it a, well «»f that ofIT:?:}, winch preceded it, is intimately 
connected with that of the revolutionary struggles of the province, 
and will be considered in - onjunction with it. The discussions 
which grew out of it, were ably conduct. .1 on both Bides; and 
thej led to the full examination of the previous exercise of the 
ordinance power in general. The result of the investigation was, 
that it was f-nd to have had in practice only the limited opera- 
lion which we have assigned to it: and that investigation is here 
adverted to, only for the purpose of illustrating the general re- 
mark, "that the ordinance power, under the charter, in its gen- 
eral exercise, conformed to its charter-restrictions, and was not 
in fact exercised in the colony, either to subverl or usurp the 
place of legislation: and thai Maryland, throughout her colonial 
existence, was nol Bubjecl to, aor operated u] , by an) legisla- 
tive power inthe province, except thai of the charter, in which 
her freemen participated, and by which thej were protected. ' 
The Executive powers, conferred by the charter upon the pro- 
Drietan were ample and efficient. Tiny earned 

The exeruiive I " "J> ' . , ,, I 

, en lent Wllll ,| H . m all the jurisdiction thai was compatioie 

','>• government. ul ,|, ,|„. colonial dependence of the province, and 
WM „ , r . for 1.- ■ md internal administration. Be- 

sides the rights, powers, and privileg. inted,thepro- 

invested by the Ith section of the charter " with all 



152 THE PROPRIETARY. [Hist. View. 

the rights, jurisdictions, privileges, prerogatives, royalties, liber- 
ties, immunities, royal rights, and temporal franchises whatso- 
ever, which had ever been held or exercised by any bishop of 
Durham within the biohoprick or county palatine of Durham in 
England." 

The origin, nature, and extent of these Palatinate Jurisdictions 
and privileges, as formerly exercised within the bishoprick of 
origin nature & Durham and the counties palatine of Chester and 
"'"!;l^f Lancaster, have been fully examined and illustrated 
tion attached to in other works. It will be sufficient to remark, that 
these peculiar jurisdictions were erected in these 
counties of England, at a period when they were border counties, 
and,;as such, were relied upon to guard the frontiers. They were 
continually exposed to predatory incursions from Scotland or 
Wales, which in those days of baronial strength and turbulence, 
were very frequent, easily concerted, and speedily accomplished'. 
At thatj>eriod, when garrisoned fortifications and standing armies 
did not make a part of the strength of the nation, such border 
incursions could gather head, and discharge their whole force 
upon the bordering counties, before the aid of the kingdom could 
be effectually called in. The crown was therefore compelled to 
rely, for the protection of the frontiers, upon the power and ener- 
gies of the borderers: and as their situation required constant 
vigilance and attendance at home, and the existence and pre- 
sence amongst them of an authority adequate to the exigencies 
of the moment, these palatinate jurisdictions were created to meet 
that necessity. The earl of Chester, the duke of Lancaster, 
and the bishop of Durham, who were at the head of these palati- 
nate governments, were therefore invested with powers and pre- 
rogatives which fell little short of those of royalty itself. They 
appointed all officers within the counties. The courts of jus- 
tice were emphatically their courts: for all process which was 
issued out of them, ran in their names, instead of that of the 
king's ; and all offences were held and charged in indictments, 
as offences against them, and not against the king. They had 
power to pardon all offences whatsoever committed within their 
respective jurisdictions. The lands lying within their provinces, 
were deemed to be holden of them ; and they were therefore en- 
titled to escheats, wardships, and the other fruits of the feudal 



Chap, i.] GOVERNMENT OF MARYLAND. ]-,:{ 

tenures, which foil to the lord of the fee. They Lad the right of 
levyino forces and waging war for the defence of their provinces, 
and of pursuing invaders even beyond the limits of the kingdom. 

(1) By some of the old writers they were said to have ''full royal 
power'' in all respects: bul these general expressions must be 
received "«*fi tnodo." Their powers were indeed as ample as 
those of royalty, jfor all the purposes of their establishment: yet 
they did not carry with them sovereignty or its peculiar preroga- 
ti\ e8. The eminent dominion and control of the crown prevailed, 
as to the rights of war and peace, as fully over these counties as 
over the other portions of the kingdom. The allegiance of their 
inhabitants was due to the crown, and not to the head of the pa- 
latinate government: and it seems to be the better opinion, that 
although these palatinate chiefs were permitted, without waiting 
for the direction or sanction of the crown, to carry on a mere de- 
fensive war for the protection of the borders; yet they had not 
the general righl of declaring war or concluding peace. Such a 
right, existing independently of the crown, might have brought 
them into a direct conflict with its sovereignty. 

The objects and necessity of this extensive grant of power and 
jurisdiction to the proprietary of Maryland, are easily perceived. 

Pottey of the The policy of the English government at that day, 
Bngltsb govern- . . ... 

mi.-iii miL-exi'ii- in the establishment ot its colonies, was umiormly 

rUdiciion to the to leave the conduct and settlement of the colonies 

cokmtal govern- ...... 

mi m. to individual enterprise and resources. It gave no 

boon but the privilege of occupying and peopling the wilderness: 
and granting this w ith the reservation of its sovereignty, it east the 
enterprising individuals or corporations to whom the grains were 
made, entirely upon their own means and energies for the estab- 
lishment and BUStension or their settlements. [f ihoy succeeded, 

\\< dominions were enlarged, new channels opened for its com- 
merce, and H- revenue increased, [f they failed, the crown fosl 
nothing bnl an empty grant of kingdoms it had never held, and 
powers it had never enjoyed. In accordance with this neutral 
pohev as to schemes of colonization, il became accessary to dele- 
gate o> the grantees all the powers of government which were 

(1; i tare and exl UituUe jwritdielions, see 6tb Vi 

Abri'i i m, 188 to 192, and thi case ol Rus v II 

r, in whicl ' i i- much dis< usw d. 

20 



154 THE PROPRIETARY [Hist. View. 

requisite for their protection or the internal administration of their 
colonies. Hence arose all the various forms of charter and pro- 
prietary governments, which, in their origin, were in fact intended 
to relieve the crown from the cares and responsibilities incident 
to the administration of an infant settlement: and which became 
objects of jealousy to it, only when they had reared their settlements 
to wealth and power. Whilst they were contending against the 
dangers and difficulties of their establishment, the English gov- 
ernment, with all the indifference of epicurean philosophy, looked 
calmly and unconcernedly upon their situation, and left them to 
their struggles. When they had surmounted these, then it was 
she remembered they were her children, and then only to make 
them know and respect the authority of a parent. Her desire to 
rule and protect the colonies, and to substitute her own immedi- 
ate administration for that of their peculiar colonial governments, 
increased precisely in proportion to the ability of the colonies to 
rule and protect themselves. 

Acquainted with this her policy and the sources of her jealousy 
towards the colonial governments, we are but little surprised at 
The jurisdiction tne extensive grants of power and jurisdiction con- 
the lfe p r ro d pri"wry ferred by the early charters ; and still less so as to 
^ta"/ JM exte£ those g iven ,)V tllc charter of Maryland, when we 
Blve * recur to the circumstances under which that charter 

was granted. These have already been unfolded. It was a 
grant to a favorite, by a monarch whose partialities were as un- 
bounded as they were capricious: and there is reason to believe, 
that it was framed under the dictation of that favorite. Tims in- 
dulged, lord Baltimore adopted, as the general model for his pro- 
prietaryship, the palatinate jurisdictions in their original form and 
extent ; which approached more nearly to sovereignty than any 
other of the subordinate governments known to the laws of Eng- 
land. The powers originally incident to these in the border coun- 
ties, were soon found to be too extensive to be reposed with safe- 
ty in the hands of the subject ; and they were therefore much re- 
duced and restricted, at the period when this charter was granted : 
but to the proprietary of Maryland they were granted in all the 
extent in which they ever had existed. The charter did not stop 
here. It contains special grants of power and privilege, which 
not only cover the ground of the general grant of palatinate juris- 



Pbtp.1.] GOVERNMENT OF MARYLAND. 155 

diction, but extend considerably beyond it, and render the grant 
of Maryland the most ample and sovereign in its character that 
ST er emanated from the English crown. The power to call as- 
semblies and enact laws by their assent, and the extensive opera- 
tion given to the legislation of the province, did not belong to 
the palatinate governments: and they constitute a very peculiar 
feature of this charter, when we look at the spirit of the crown, 
and the prevailing temper amongst the nobles, at the period when 
it was granted. The proprietary might, doubtless, have as easily 
obtained a granl of legislative power, to be exercised solely by 
himself, and quite as extensive : and the admission of the colonists 
to participation in it, at once evinces his sagacity, and reflects 
lustre on his character. It was this exalted privilege, which en- 
deared his government to the people of Maryland: and had they 
not possessed it, his dominion would soon have been marked by 
thr same arl.nrary character, and have shared the same fate with 
that of the London company. There was another very peculiar 
feature in the grant of legislative power. The sovereignty of 
the mother country was reserved in terms, but the proprietary was 
ander no obligation to transmit the laws of the province to the 
king, lor allowance or disallowance. Thus the vigilance of 
the crown, in guarding it- own prerogatives against silent and 
gradual encroachments, was in a ^reat measure excluded; and 
the reservation, except in cases of direct conflict, became a mere 
■Innium fuhnen." In examining the special grants of executive 
privilege and power, we -hall in general find the same latitude. 
Classified according to their objects, these were either civil, mili- 
tary, ecclesiastical or commercial.' 

As thr Bupreme executive under this government, the proprie- 
tary had the sole right of creating the ollices of the province, and 
determining their form and functions, and of ap- 
powen: and first- DO mting all indues, justices, and other officers what- 

tottwcreaUoDot BO ever within it. He had the power to establish 
thr orBi ••-, and ....... I 

ippotntmeni cour t a and determine their jurisdiction ami manner 
Hi Hi.- "iii' • ' . , 

u„ ; proTtnee. f proceeding; and all the process from these courts 

r;m in hu nam- ami not in that of the king. These sole powers 

the proprietarj po • i d, np1 only as palatinate powers, I. ut also 

under the express grants of the seventh wctionofthe charter: and 

ahboogfa competem of himself to their exercise, he might, and m 



156 THE PROPRIETARY [Hist. View, 

some respects did submit them, to the regulations and restrictions 
of the a laws of the province. The courts were always held, 
and the process always ran in his name: and the organization of 
the courts was in general determined by the commissions of the 
proprietary or his governors. But the time, place, and manner 
of holding the courts, the limits of their respective jurisdictions, 
and the manner of proceeding in them, were the constant subjects 
of legislation. The general power of appointing the officers of 
the province, was, however, one of such consequence, that it 
was retained by the proprietary as his sole power, in full vigor 
and nearly all its original extent, throughout the proprietary gov- 
ernment. It was retained not only as lo all the State offices, but 
also all the county offices, except one or two of a very inferior 
nature : and the exercise of it was, with a few exceptions, con- 
fided to the governors of the province. (2) Under this unlimit- 

(2) Upon the establishment of the royal government, the appointing power 
of the proprietary, in all its plenitude, devolved upon the crown : and during 
the continuance of that government, some very salutary restrictions were im- 
posed upon this hitherto unlimited power, by the act of December, 1704, ch. 
92, entitled "An Act for the advancement of the natives and residents of the 
province." It rendered all persons incapable of holding or enjoying any 
office of profit or trust in the province, either in person, or by deputy, who 
had not resided in the province at least three years : and the only exceptions 
to this incapacity were, in the cases of persons holding offices by commission 
immediately from the crown, and of persons holding such offices at the time of 
the act passed. All officers of the crown within the province, having the power 
of appointing to any office within it, were required, without exception, to con- 
form to this rule : and as persons holding offices by immediate commission 
from the crown were exempt from it, they were required, by this act, to re- 
side in the province, and to exercise their offices in person, and not by depu- 
ty, in all cases where this was not specially dispensed with by the crown. 
The strict letter of this act relates exclusively to the exercise of the appoint- 
ing power under the royal government : but being a high remedial statute, 
aimed at abuses equally likely to exist, and equally requiring correction under 
the proprietary government, its operation does not appear to have ceased with 
the royal government. By the equity of the statute, it applied as fully to the 
officers under the proprietary, as to officers under the crown : nor was it any 
invasion of the proprietary rights under the charter, as it did not apply to 
appointments coming directly from the proprietary, except in requiring 
residence in the province, and a personal exercise uf these offices by those so 
appointed ; and even these requisites might be dispensed with, by the special 



Ohap. I.] GOVERNMENT OF MARYLAND. 157 

ed power of appointment, the offices of the province were held at 

the pleasure of the proprietary: and herein consisted 

StaTSrieta? the greatest defeel in the government, lis tendency 

,;.':r l '!;: was to render these officers the dependants and 
satellites of the proprietary or his governor, and to 
convert their offices, which were instituted for the benefil of the 
people, into so many weapons of offence against then., on all 
occasions of eohflicl With the government. The dependence 
« hich it entailed, was utterly incompatible with the exalted duties 
of the judiciary; and although less repugnant to the nature of 
the men- ministerial offices, it erred in rendering them solely 
responsible to those who appointed them, and were naturally 
inclined to sustain their acts, whatever theymightbe; and wholly 
irresponsible to those for whose benefil these offices existed, and 
upon whom their misdemeanors in office were to operate. Yet 
the tendencies of this dependant state were in a great degree 
counteracted by the control of the Assembly of the province over 
its revenues generally, and over the fees of office. The officers 
wen principally sustained by fees ami perquisites, thai right to 
and quantum of which., were generally and properly regulated 
OI1 ly by acts of Assembly. The proprietary's revenues arising 
iVum the province, excepl those accruing from the grant of lands 
ami common law lines and forfeitures, were derived from the 
tame source: and they were given to him and enjoyed by him 
for bis persona] emolument, and were not sufficient to enable 
Inm to endow the offices with salaries. The value of the offices 
,,, tfi e incumbents, depended upon the fees of Office attached to 

them by acta of Assembly. Those acts regulating fees, were not 
only subject to alteration or repeal, but they were also tempo- 
rary, ami passed for short periods: at the expiration of which 
they expired l>\ their own limitation, if not soonei repealed, ami 
,.,,,,1,1 ,,ot he revived] except bj the assent of the Assembly. 
Thus the Assembly always retained its control over the (<■<■> of 

office, and it- check upon the officere. The proprietary gave 

permission <>f the proprietary. The provisions nf this acl merely imposed 

Mjutan restrii lions upon I i "i the appointin ■ power bj sub-officers, 

tiallyappUcable, under both governments: and 

osidered bj Bacon, who has published them al large in I" 

,, of the f' ilive under the proprietary government. 



X£8 THE PROPRIETARY [Hist. View. 

offices, but the acts of the Assembly alone gave them value; and 
if it chose to reduce or withhold the fees, the incumbent might 
truly say, — "You take my office, when you do take the fees whereby 
I live." Seeing this, we understand at once the constant and 
vigorous opposition of the Assembly to every attempt of the 
governor to establish these fees by proclamation. Their vehe- 
mence was fully justified, by the consideration of the dangerous 
consequences which might have flowed from the admission of 
this power, under any circumstances. If once sanctioned by 
the people even as an interim power, it would have been fatal to 
this policy. The governor would have assented to no future 
act, but would have continued to regulate the fees by proclama- 
tion; and thus the officers would have been rendered entirely 
independent of the people. The sagacity of the people per- 
ceived this, and hence their unyielding opposition. 

The powers of erecting towns and cities, and conferring titles 
2diy. The pow- ant ^ dignities, fall properly under this head. Under 
fown'/nnd citieL\ tne fourteenth article of the charter, the proprietary 
ii i'^i itie" n ;m r d ' u"- na( l tnc general power of erecting and incorpora- 
tes of honor. tm g towns into boroughs, and boroughs into cities, 
with such privileges and immunities as he might deem expe- 
dient. His power to confer dignities and titles of honor, which 
was given by the same article, was subject to the restriction that 
they should not be such as were then used in England; and this 
restriction rendered the power a mere nullity. Titles of honor, 
to carry with them any peculiar respect or consequence, without 
regard to the merits of the possessor, must be consecrated by 
their long association with ideas of wealth and privilege. New 
titles, given for the mere purpose of conferring honor, are gene- 
rally as ridiculous as were those incorporated by Mr. Locke into 
the constitution of Carolina. The first proprietary, in some of his 
early instructions, appears to have cherished the design of con- 
ferring dignities as enduring personal distinctions; but fortunately 
for the colony, the design never was carried into effect. The 
existence of a titled gentry throughout the colonics, would have 
proved a serious obstacle to the accomplishment of their liberties. 
The great body of the aristocracy, which they formed, would 
always have been found on the side of prerogative, warring 
against the principles of republicanism. Distinction by title, 



cbap .I.] GOVERNMENT OP MARYLAND. 159 

however it may in Borne rare instances be controlled l.y the virtue 
of ^ possessor, is the natural enemy of principles which know 
and reaped no distinctions amongst freemen, except those of 

intrinsic merit. 

Uothei important branch of the powers falling under this 
head was the pardoning power. This power, as 

3,liv. The powei ' 1 ° . . 

topudiAidibooea. given by the seventh section 01 tne charter, was 
twuriemsaratewith the proprietary government itself. Under that. 
section, the proprietarj was empowered to "remit aha pardon 
all crimes and offences whatsoever against the laws ol" the 
province, whether before 01 after judgment passed;- but his 
power to pardon appears to have extended beyond this special 
grant. The offences which were committed within the counties 
palatine of England, were defined', and their punishment prc- 
scribed by the laws of England, although they were charged and 
proceeded against, as offences against the lord's palatine; and 
because of their general jurisdiction over all offences committed 
with... their limits, the lord's palatine bad also the power to 
pardon them, not excepting even treason. It would seem, 
therefore, that the proprietary had the power of pardoning all 
offences committed within the province, even if they arose under 
English Btatutes operating here, as well as if under the positive 
lawa of the province, to which the seventh section, by its context, 

refers. 

The military powers of this government, as defined by the 
charter, appear, as well as those of the palatinate government, to 

ba T e been given solely fbrThe purposes of defence. The pro- 
prietary was clothed With all the powers of a captain 
Military powen ' ■ , , c 

of the prophet* » enera ] i M summoning and arraying tor the deience 

r\ uider the char- - , . . , ■ 

f the province all its inhabitants, and in waging 
war against, and pursuing even beyond the limits of the province 
,„d taking captive all enemies invading or infesting it by land or 
The captives taken, he was empowered either to pul to 
death or otherwise to dispose of at his pleasure. He might also 
, I,, dare and exercise martial law, in all cases of rebellion, sudden 
tmim lt, or sedition in the province; and against all persons 
within the province, guilty of sedition, r< fu ing to submit to his 
rernment, 01 to r< nder military duty, deserting to the enemy, 
or otherwise offending against the rules and discipline of wax. 



160 THE PROPRIETARY [Hist. View. 

The restrictions of the statutes of fugitives were also dispensed 
with, and the inhabitants of the province were authorised, under 
the assent and direction of the proprietary, to build and fortify 
castles, forts, and other places of strength within the province, 
either for their own or the public defence. Such was the charter- 
extent of the military powers incident to this government; and 
the palatinate powers appear not to have extended further. It 
was not consistent with their subordination to the kingdom of 
England, to extend these powers beyond the means and opera- 
tions of defensive war. The unlimited rights of war and peace 
are the highest attributes of sovereignty; and the full exercise of 
them is compatible only with the supreme power. They made a 
part of the eminent dominion of the mother country, with 
which their full exercise by the colonies would manifestly have 
conflicted. The foreign relations of the parent country would 
thus have been placed at the mercy of the colonies. By decla- 
ring war against those with whom .she was at peace, they would 
either have drawn her into the contest, or have entailed upon her 
the responsibility of their offensive measures; and by putting 
themselves in an attitude of peace as to those with whom she 
was at war, they would have withdrawn themselves from their 
allegiance. Their powers were therefore very properly limited 
to the protection of the province, and were given merely to meet 
a state of actual hostility to it, arising either from rebellion, 
invasion, or warlike array against it. Of this nature were the 
various acts from time to time passed for carrying on warlike 
expeditions against the Indians, which were always predicated 
upon some actual or expected hostilities on the part of the latter. 
These military powers, although conferred solely upon the pro- 
prietary, did not carry with them the right of raising the revenue 

necessary for their exercise. The Assembly alone 
Restrictions im- 
posed upon these held the purse strings of the provincial revenue. 

military powers -» T . . . 

by tim legislation No subsidies, aids, customs, taxes or impositions of 

of the province. 

any kind, could be levied for any purpose whatso- 
ever, upon the persons or property of the freemen of the province, 
without the consent and approbation of the General Assembly. (3) 
IJy their acts alone, could a revenue be raised from the province 

(3) Act of 1C50, chap. 25, confirmed amongst the perpetual laws by the 
Act of 1C7G, chap. 2d. 



Chap. I.] GOVERNMENT OF MARYLAND. 161 

to defray the expenses of military expeditions. And besides this 
general dependance upon the province for the means of their ex- 
ercise, these powers were subject to the restrictions imposed by 
the permanent act of 1650, chap. 26. (4) Under these, if war was 
waged by the proprietary or his governor, without the limits of the 
province, and without the approbation of the General Assembly, 
the freemen of the province could not be required to aid in the 
prosecution of it, either in their persons or by their property : and 
martial law could not be exercised within the province, " txcept in 
timr of cmnp or garrison, and only within such camp or garrison,'' 
i. e. in time of actual service, and upon those in actual service. 
The general charter power of the proprietary to call out and array 
the inhabitants of the province for its defence, was also, from a 
v.ry early period, modified and regulated by Acts of Assembly, 
prescribing the manner of organizing, arming, and disciplining 
the militia! (5) The systems of internal defence, which were es- 
tablished by these acts, will hereafter be considered in conjunc- 
tion with that which now prevails in the State. We are now 
only cdnsidering the purposes and manner of their establishment: 
and" from the view which has been taken, it will be seen that the 
Assembly soon obtained over this, as well as over the other sole 
powers .»filu- proprietary, a wholesome control which facilitated 
their proper exercise, and prevented their abuse. 

The neutral policy of the English government, in 

General course * " w l J , . 

or id.- K-.Bixn rpferencc to the establishment of her early colonies 

government as _ ■„,,«„«. 

io the commerce this continent, is nowhere more conspicuous 

of the American J , . TM,„ 

colonics. ,),;,„ i n her conduct as to their commerce, lne 

leadincr traits of that policy have already been described. It left to 
unassisted and individual enterprise, all the expense, hazard, and 
difficulty reestablishing these colonies. It permitted them to 
grow up through all the- perils and difficulties of their first scttlc- 

(4) This act of 1650, chap. 26, was also confirmed amongst the perpetual 
laws, by the aet of 1676, chap. 3d. 

(5) The successive acts on this subject were the acts of 1661, chap. 8. 
1676 chap. 8. I678,ehap.9. 1681, chap. 1. 1692, chap. 83. I698,ehap.47. 

,,,,,1 l;,.U, th,: act of 1715, chap. 43, which, with its supple- 
menu of L7»/ehap. 15- L73»,ebap. 7, and 1748, chap. 1, constituted the 
militia law of the province until the revolution. 

21 



162 THE PROPRIETARY [Hist. View. 

ment, under its indifference and neglect. It extended its provident 
care to them, when they had wealth to be taxed, commerce to be 
monopolised, and power to be directed. Hence, the early char- 
ters, granted when colonization was an experiment, and the be- 
nefits of colonial commerce in embryo and scarcely a matter of 
calculation, are very lavish in their grants of commercial power 
and privilege. Several of these charters were sought and obtain- 
ed solely for commercial purposes : and under all of them, the 
security and benefits of commerce were necessary to stimulate 
enterprise and invite emigration. It was necessary to establish 
and nurture their commerce in its infancy, by liberal grants of 
privilege : for unless so nurtured, there would be nothing upon 
which the exactions of the mother country could operate. There 
is, indeed, in this respect, a striking contrast between the bene- 
ficial provisions of the early charters, and the narrow, selfish and 
enslaving policy, subsequently adopted by the government of En- 
gland, with reference to the commerce of these colonies. Her 
adulating writers, whose object was, or is, to depress our nation- 
al character, by exalting her conduct towards these States when 
colonies, may remind us of the parental liberality of these early 
grants : but when we stand in view of this contrast, we remember 
the kindness thai 'fattens for the slaughter. 

The early policy The charter of Maryland was exalted above every 
ment'^iiuJtrated other by its commercial privileges and exemptions, 
dd he prMieges A- 11 commodities were permitted to be imported into 
ciianer 1 ofMary- the province, except such as were specially prohib- 
ited, upon payment of the ordinary customs. (6) The 
colonists were permitted to export from it all articles whatsoever, 
of its growth or produce, to any of the ports of England or Ireland, 
subject only to the customs and impositions paid in similar cases 
by the inhabitants of England : and if they did not deem it pro- 
per there to dispose of them, they might store them, and within 
one year computed from the time of unlading, they were permit- 
ted to relade and export them to any part of the English 
dominions, or of the dominions of any foreign power in amity with 
England, subject, as upon their import, only to the customs paid 
in similar cases by the people of England. (7) Full and absolute 

(6) Charter of Maryland, art. 11. 

(7) Charter, article 15. 



Chap. L] GOVERNMENT OF MARYLAND. 1C3 

power was given to the proprietary, to establish the ports of en- 
try and discharge for the commerce of the province, and to invest 
them With BUOh rights and privileges as he deemed expedient. 
The proprietary, by the assent of the colony, was permitted to 
impose customs upon the exports and imports of the province, 
and was entitled to the avails of those customs to the exclusion 
of the crown: and the kings of England, by the express cove 
nant of the 20th article, were prohibited » from imposing or caus- 
Uw to be imposed, any impositions, customs, or other taxations, 
quotas or contributions whatsoever, upon the persons or proper- 
ty of the inhabitants being within the province ; or upon any 
merchandise whatsoever with* the province, or whilst being 
laden or unladen in its ports." (8) 

Similar exemptions of the commerce of a colony were granted 
for short periods, by some of the other charters: but under this 
charter, the privilege was perpetual. It was manifestly intended 
to operate to the entire exclusion of the taxation of England 
from the province, and was afterwards found to be 
^d U e" n of one of the m0 st insuperable objections, in argument, 
StST** t0 thc excrc ise over Maryland of the power of inter- 
rSn°: nal taxati0 n claimed by the British Parliament. It 
*%££?*"' gav c the inhabitants of this colony a peculiar claim 
to exemption beyond that of the other colonies, which they relied 
upon with Teat confidence in their opposition to the stamp and 
tea taxes Mr. Chalmers, whose work was written for the express 
purpose of demonstrating that the parliament possessed this 
power frankly admits that this exemption gave peculiar strength 
to theMaryland claim. At the same time he considers it as an 
exemption, which neither was intended to operate, nor could 
open,.- againsl the powers of parliament. His objection to this 
application ofit rests upon the assumption, thai the government 
of England, at the period when tins charter was granted, was a 
limited monarchy, under which the king could neither strip par- 
l i&menl of its powers, nor rightfully exercise the power ol taxa- 
tion except bj its* sent: and thai this exemption ol the char- 

„ r was in fad nothing more than the principle asserted and 
maintained bj th. HouseofCom - againsl the royal prer- 

(8) Charter, article, 17 and 20. 



164 THE PROPRIETARY [Hist. View. 

tives in their petition of right in 1628. The revolution has an- 
swered his argument, and the reply to it would now be idle dis- 
cussion. It would not be difficult to show that the limited mon- 
archy, of which he speaks as existing for centuries, and as then 
only rescued from the grasp of prerogative, was before that pe- 
riod a mere legal fiction, scarcely known, and never respected in 
the operation of the government; and that as to the colonies, the 
power of the crown was supreme and uncontrolled. It granted 
charters with what privileges it pleased in derogation of the sov- 
ereignty of England ; and its power to do this was not then ques- 
tioned even by parliament. As to the colonies, it was then con- 
sidered as the depositary of the sovereignty of England; and the 
parliament sat by in silence and saw it exercise that sovereignty 
or grant away portions of it at pleasure. The grantees under the 
charters regarded it as such, relied upon their privileges as the 
grants of the English government, and col- nised their provinces 
under that reliance. Under such circumstances, the claim of par- 
liament to jurisdiction, in direct opposition to the grants of the 
charter, had neither reason nor justice to sustain it: and if valid 
at all, it placed the whole charter at its mercy. Those, who vin- 
dicate the conduct of the English government, may make their 
choice of the alternatives. Either she did not possess the power, 
or her assumption of it, after the colonies had been planted and 
reared to maturity solely by individual means and enterprise and in 
reliance upon the privileges which the charter purported to con- 
vey, was an act of rank deception and injustice. 

The colony of Maryland, with all her peculiar claims, soon 
shared the fate of the other colonies. Her commerce was left 
entirely to her own regulation, until it became sufficiently valua- 
ble to attract the grasp of England ; and then it was taken into 
The system of guardianship. A system of monopoly was soon es- 
the commerce o" tablished, which endured until the American revo- 

the colonies in- . . _ 

troduced and es- lution. 1 he iuli and hnal establishment of this sys- 

tablistaed during J 

the reign of tern was reserved for the reign of Charles II. It 

Charles I. 

began with the statute of 12th, Charles II. chap. 18, 
which limited the carriage of the imports or exports of the colo- 
nies to vessels belonging to and navigated by English subjects, 
and prohibited the exportation of tobacco and certain other 
enumerated commodities, to any place without the dominions of 



Chap. I.] GOVERNMENT OF MARYLAND. 1G5 

England, under the penalty of forfeiture. The next step was to 
provide, that the imports of European commodities should reach 
the colonies only through the mother country : and this was ef- 
fected by the statute 15th Charles 2d, chap. 7th ; which required, 
that every commodity of the growth or manufacture of Europe, 
about to be imported into the colonies, should be shipped in En- 
gland, and carried thence to the colonies, only in vessels owned 
and navigated by English subjects. From these restrictions upon 
direct importation, were excepted a few articles of necessity, which 
it is not necessary to specify. Still the commerce in the enume- 
rated commodities, although it could not be carried on without the 
English dominions, was yet open to every part of them ; and it 
now became a grievance in the eyes of the English parliament, 
that the trade in these articles was carried on between her own 
colonies without any immediate revenue to England. Taxa- 
tion of colonial commerce was the next remedy, and a new statute 
was now passed, 25th, Charles II, chap. 7th, which provided, 
that if bond were not given to secure the exportation of the enu- 
merated commodities directly to England in the first instance, 
then certain duties should be paid to the crown upon their export 
to other parts of the English dominions. Places were to be de- 
signated, and officers to be appointed for the collection of these 
duties in the colonies, and thus was fully introduced the restric- 
tive system of England, which made her ever afterwards the car- 
rier, the manufacturer, the vendor, and the purchaser for the colonies. 
This restrictive system subsequently underwent many occasional 
Changes and enlargements; but from this period we may date the 
fall establishment of that supremacy over colonial commerce, 
which England exercised without scruple, and often to the op- 
pression of the colonies, until the approach of the American re- 
volution. 

It became now with England the established doctrine, that 

nm MMptioi ahe was the heart through which the whole com- 

;:,';!, merce of her colonics must pulsate. It was not es- 

Lablished without opposition. The colonies evaded, 

colnnyof Mary- ^^^^ ;m(1 rosistod> t0 a degree which kept 

Charles in a state of continual irritation throughout bis whole 
reign. The proprietaTJ c;mu: in for a full share of his rebukes. 
The navigation act had for a time operated very oppressively 



166 THE PROPRIETARY [Hist. View. 

upon Maryland. Its inhabitants, devoted almost exclusively to 
planting, had no shipping of their own, and relied entirely upon 
others for the exportation of their produce. It appears from 
their revenue acts and their other Assembly transactions, that 
the Dutch, at the passage of this act, were the principal carriers 
of the trade of the province. These being excluded, it required 
the operation of the act for some time, so to enlarge the shipping 
of England, as to give the colonists the same facilities of trans- 
portation, which they had previously enjoyed, when the shipping 
of the whole world was open to them. Being speedily followed 
by the acts relative to the export of the enumerated commodities, 
it soon involved the proprietary in difficulties with the crown. 
One of these enumerated articles was Tobacco, which was the 
principal, if not the sole export of the colony; and these acts in 
effect reached their whole commerce. The proprietary's situation 
would not permit him to take the broad ground of entire exemp- 
tion under his charter; but he maintained, that his subjects were 
not bound to export their tobacco to England or Ireland, or to 
give bond for that purpose, if they paid the duty. The collectors 
were soon drawn into very angry contests with him, in which 
they were sustained by the crown ; and the proprietary was warned 
to look to it, lest he might be stripped of his charter. These 
dissensions continued in some degree, until the Protestant revo- 
lution in 1689, when the proprietary was stripped of his govern- 
ment by his own subjects; and his very defence of the commerce 
of his colony against the oppressions of the crown collectors, 
was made a substantive charge against him by his own people. 
Thus, by the excitement of the moment, the colonists themselves 
were ranged on the side of the restrictive system. From that 
period it was rivetted upon the colony, and its general validity does 
not seem to have been questioned. Acknowledged and sustained 
by the colony, as predicated upon a mere power to regulate com- 
merce, it was considered as the limit of the supremacy of England^ 
and was distinguished from the power of internal taxation for the 
purpose of revenue. 

Under the fifth article of the charter, the proprietary was en- 
titled to the patronages and advowsons of all churches within 
Ecclesiastical pow. the province. He was also licensed to found 

■era of the proprie- . 

tafy- churches, chapels, and places of worship within 



Chap. I.] GOVERNMENT OF MARYLAND. 167 

it and to cause the same to be dedicated and consecrated ac- 
cording to the ecclesiastical laws of England. These powers 

require do comment. 

Passing tmm this general view of the proprietary government, 

and of the character, extent, and exercise of its con- 

EraUSS stituent powers, we propose to consider briefly the 

ite proprietary. persmal rig h ts and revenues of the proprietary flowing 

from it. .vi. 

Of these, the first in order and importance were those, which 
arose from the ownership of the soil of the province. Under the 
charter, the proprietary was both the ruler of the 
ZTof the pr"o'- province and the owner of its soil; and the pecu- 
SKr&JSS liar powers possessed by him, therefore fall properly 
the province. ^^ ^ general chsse9) having reference to these 

distinct rights of soil and jurisdiction. Although blended in 
the crant, they were yet distinct and independent; and hence 
doling the long interval from 1689 to 1716, when the proprietary 
government was suspended, and the province under the imme- 
diate administration of the crown, the proprietary, although 
.tripped of his rights of jurisdiction, was left in possession of his 
rigta as the owner of the soil. The grant and tenure of the 
province, as held by the proprietary of the crown, were deter- 
miocd by the third, fourth and fifth articles of the charter. The 
limits of the grant have already been described. The limitation of 
the gnat was to Cecilius, baron ol Baltimore, his heirs and assigns; 
and the ownership of the province was therefore assignable. The 
proprietary and his heirs were constituted « the true and absolute 
lord, and proprietaries of the province," reserving only the alle- 
giance due to the crown, and its sovereign dominion. The pro- 
v,nr, was held of the kings of England, as of their castle of 
Windsor in .be county of Berks, in free and common socage, by 
fealty only for all services, and not in capite nor by knights ser- 
wd the render by the proprietary to the crown, in acknow- 
ledgment of the tenure, was "two Indian arrows of the pro- 
rfnee, to be deUrered annually at the castle of Windsor, and the 
fifth part of all gold and silver ore discovered within it." 

The Whole ptOTinee bring thus held of the crown, the proprie- 
tary, his beirs and assigns, were empowered to make grants of 



168 THE PROPRIETARY [Hist. View. 

His- power to anv estate or interest in its lands, to be holden 
of ak the Sl land r 8 an of directly of them and not of the crown, by the same 
the Pr ?e V nure' an o d f species of tenure under which they held the pro- 
tuose 8 ub-granu. vince of the C rown : and the restrictions of the 
statute, 18 Edward 1st, chap. 1st, commonly called " the statute 
of Quia Emptores," were expressly dispensed with. Hence the 
proprietary was at once the sole tenant of the crown, and the ex- 
clusive landlord of the province. It would be foreign to our pur- 
pose to dilate upon the nature and incidents of the tenure by 
free and common socage, which was common to the grant of the 
province and the sub-grants from the proprietary. These are 
fully described in various elementary treatises, which are within 
the reach of every reader. It is sufficient to remark, that the 
services rendered under it by the tenant to the landlord, in ac- 
knowledgment or consideration of the grant, were fixed and deter- 
minate, so that the tenant was above the reach of exaction; were 
of so free a character as not to degrade the tenant in the perform- 
ance of them ; and were pacific in their nature, in contradistinc- 
tion to the military services which might be required under the 
tenure by knight's service. At the period when the charter of 
Maryland was granted, it was the most favored and beneficial 
species of tenure known to the laws of England. Its free, cer- 
tain, and pacific services, placing the tenant above the occasion- 
al exactions and oppressions of the landlord, gave it an ascen- 
dancy over every other tenure, which was at length consumma- 
ted in the mother country, during the reign of Charles II., by the 
entire abolition of the tenure by knight service. This socage te- 
nure having always been the exclusive tenure of the province, 
and having existed here in its most ameliorated form, it carried 
with it encouragements to emigration, and incentives to indus- 
try, which can scarcely be sufficiently appreciated by those whose 
experience has not made them familiar with the oppressions in- 
cident to the other tenures. 

The manner and terms of his grants in conformity to this ten- 
ure, being thus left to the exclusive determination of the proprie- 
tary as to that of any private owner of lands, he re- 

The mannsr in . , 

which it was ex- tained and enjoyed his exclusive control over them, 

ercised. 

throughout the whole period of the proprietary gov- 
ernment. This was a private and personal right, which he did 



Chap. L] GOVERNMENT OF MARYLAND. 169 

not choose to submit to the legislature of the province; and as 
t^ holder of its soil in his own right and for his own benefit, he 
would have acted very unwisely in Buffering his rights ol owner- 
Bfeip to be bound and controlled by public laws. His conditions 
of plantation, proclamations and instructions, always prescribed 
the conditions on which the lands of the province should be 
granted* and the manner and terms of the grant. In the same 
lli;iIll] „. we re determined, the organization of the land office, and 
the powers and duties of the several offices appurtenant to U. 
VII that relates to the history of the establishment and organiza- 
tion of the land office, and of the modes of proceeding from 
tune to time adopted in it, belongs to the particular view of the 
part ami present structure and operation of the land office, here- 
after to be presented. . 

The proprietary's revenue arising from his land grants, consisted 
s,uroesofu,epro- in quit rents, caution money paid at the time of the 
SSSS*"* grmt, and alienation fines, including fines upon 

devhes. The profits arising from reliefs and primer seisins never 
ted, as incidents to the tenure of lands in the province. 
The Quit Rnds were the annual rents, reserved by the proprie- 
tary in his grants, and to be perpetually paid from 
Uu ' tRcnt3 ' year to year by the owner of the land granted, in 
acknowledgment of the tenancy. They were rent charges, 
Charged upon the land when it was first granted out by the pro- 
prictary, and they constituted the only revenue from land grants 
Which was looked to in the first settlement of the colony. The 
(|u;ultum of the rent to be reserved was always regulated by the pro- 
prietary's proclamationsor instructions, and it varied continually 
Ihronghout the government with the varying value of the.lands to 

I ranted, and the news of the proprietary. I" the earliest 

-rants ander the fit* conditions of plantation, the rent wasmade 
Mr mull( , lt: but u, general, with regard to the rights ac- 
quired after the year 1636, the rent was payable either in money 
.,,„„,. oi in il." commodities of the country, at the option of the 
proprietary and hia officers. This right of the proprietary to re- 
quire payment of his rents in money, was attended with great in- 
ponvenience and oppression to the people; and hence, as early 
1071 i. wascommuted for payment in tobacco. Che acl ol 
LOTl, chap. 11, Which originated this commutation, imposed a 



170 THE PROPRIETARY [Hut. View. 

duty of two shillings sterling on all exported tobacco, of which 
one half was given to the then proprietary for his own use, and 
the residue for the defence of the province, in consideration of 
his agreeing to receive tobacco for his quit rents and alienation 
fines, at the rate of two pence per pound. This mode of pay- 
ment was continued until the year 1717, by a variety* of acts, 
which will be noticed in detail when we come to treat of the 
revenue arising from the tobacco duty. The system of commuta- 
tion, although it relieved the inhabitants from some of the griev- 
ances arising from the collection of quit rents, by opening to 
them an easy mode of payment, left them still subject to oppres- 
sion from the collectors. These petty officers, clad with brief au- 
thority, and scattered over the whole province, were continually 
vexing and harassing the people; and the Assembly at last re- 
sorted to the expedient of buying out the rents and alienation 
fines, as the only effectual mode of relief. A new law was there- 
fore passed in 1717, act of 1717, chap. 7th, which gave to the pro- 
prietary, for his own benefit, a duty on all exported tobacco, of 
two shillings sterling on every hogshead, and four pence sterling 
per hundred on all tobacco exported in box or case, &c. and so 
prorata, " in full discharge of his quit rents and alienation fines." 
This temporary law was continued by several acts until September, 
1733, when it was suffered to expire : and from that period until 
the American revolution, there being no commutation, the quit 
rents were payable according to the requisition of the patents. 
During this interval, it appears that all the evils of the old system 
of collection returned in full force. Scarcely a session of Assembly 
elapsed, without some complaint of outrage or oppression on the 
part of the collectors of these rents : and every effort was made by 
the Assembly to induce the proprietary to accept an equivalent for 
them. At the session of 1735, they endeavoured to renew the com- 
mutation, and addressed the proprietary in person upon that sub- 
ject. In his reply to their proffers, which was laid before the As- 
sembly at the session of April, 1737, he declined them with the re- 
mark, that the Assembly were not apprised of the increased value 
of his rents, for if so they would not have deemed their offer an 
equivalent. To meet and to address their offer to this increased 
value, the Assembly, at the session of 1742, requested the governor 
to cause to be laid before them an account of the net annual revenue 



Chap. I.] GOVERNMENT OF MARYLAND. 171 

of the rents. This request was not complied with ; and at the ses- 
sion f 1744, the Assembly, without ascertaining the value of the 
rents and foes, agreed to give the proprietary, in their stead, a 
c]„n of two Bhillinga and sixpence sterling on all exported tobac- 
co. Weajied by the importunities of the Assembly, he at length 
authorised the governor to agree upon an equivalent: and at the 
session of August, 1745, the lower house sought, and obtained 
from ike governor, an account of the then annual value of the 
rents. The governor then demanded for the proprietary, and the 
Lssembly ultimately agreed to give £5000 sterling annually in 
lieu of the rents and fines ; and an act was passed, appropri- 
ating this amount, and imposing duties on tobacco and several 
otlmr articles, for the purpose of raising it. Yet, although it came 
up to the governor's proposition, he declined acting on it at that 
session: and from that period until the revolution, the hopes of 
commutation were abandoned. Of the value of these rents, 
throughout the proprietary government, it is difficult for us, at 
the present day, to speak with accuracy. They were the private 
property of the proprietary. They were collected exclusively un- 
der his directions: and the returns of the collecting officers made 
no part of the public records. From the transactions of the As- 
sembly, at the very period when they were negotiating for a com- 
mutation, it appears that they had no accurate knowledge of the 
amount ofrei enue derived from them. There are no data amongst 
the records of the province, from which we can form any estimate 
oftheirvalue, whilsl the commutation system was kept up. After 
the return m 1733 to the old mode of money payments, a more re- 
gular Bystem of collection was adopted: and from this period until 
the revolution, many of the debt books for the several counties 
, i;iX1 . beer preserved, and may now be found in the land office. 
These debt books, as they were termed, were the books placed in 
,1„. hands ofthe collectorsofthe rents, which specified the rent due 
DJ each individual, and the lands on which it accrued: and evi- 
dencing, a, they do, the possession of the lands specified bythe 
individual charged, and generally noting the transfers, they are 
ften relied upon to famish a presumption of title. From the 
report made to the legislature, in L745 h appears tint the net 
OMomtthen received by the propriety from the quh rents, was 
64566 L5 W.: "' (1 lrorn tl,e best estimate which can be col- 



17-2 THE PROPRIETARY [Hist. View. 

lectcd from the existing debt books, it appears that, in the year 
1770, their gross amount was about £8,400 sterling, and the net 
revenue of the proprietary from them, after deducting the expen- 
ses of collection, upwards of £7,500 sterling. This estimate is 
at least sufficiently accurate to give us a general notion of their 
value then and during the intermediate period. 

The sagacity of the wise and benevolent Cecilius, the first 
proprietary of Maryland, is conspicuous in the po- 

Caution money. . . . . 

licy pursued by him, in granting the lands of the 
province. The first wish of his heart was to see its popula- 
tion increase and its commerce prosper. Looking to the fu- 
ture beyond the petty ambitions and interests of the moment, 
he saw that his reputation and permanent interests were iden- 
tified with the prosperity of the colony ; and with the sagacity 
to perceive, and the heart to feel this, he made his rights of 
property in the province minister to its advancement. His lands 
were offered as premiums for emigration. Adventurers were en- 
couraged to come into the province, and to bring their servants 
and dependants with them. Every person transporting himself 
into it, was entitled to a certain quantity of land, without pay- 
ing any caution or purchase money, and the land granted was 
charged only with a moderate quit rent. If he brought others 
with him, he was allowed for their transportation a further quan- 
tity, which was proportioned to the numbers, age and sex of 
the persons transported, the highest premiums being given in 
some of the earliest conditions of plantation, for the transporta^ 
tion of males between 15 and 60, and of females between 14 and 
43. These land rights were prescribed by various proclamations, 
issued from time to time by the proprietary, which were famil- 
iarly called, " The Conditions of Plantation." They were fre- 
quently varied, according to the necessity for inducements to 
emigration, or to promote the establishment of settlements in 
particular portions of the State; and it would be an idle labor to 
detail the various conditions which they proposed. The curious 
reader will find them at large in Mr. Kilty's Landholders' Assist- 
ant. They were all predicated upon the wise and liberal policy 
to which we have adverted, and which alone it is now our pur- 
pose to describe. These plantation rights are the only modes 
of acquiring lands recognized in the conditions of plantation : 



Chap. I.] GOVERNMENT OP MARYLAND. l~:j 

hut besides those, there were land rights acquired under warrants 
for land granted by the proprietary to particular individuals. 
The system of purchase upon paymenl of the caution money, 
with which we are now familiar, was not known in the firsl years 
of the colony. The lands were not open to all who might choose 
to purchase them, upon payment of a defined amount of caution 
money. The special warrants were granted entirely in the dis- 
cretion of the proprietary, and were inconsiderable in the amount 
of land affected by them, when compared with the settlement 
rights acquired under the conditions of plantation : and the lat- 
ter remained the principal mode of acquiring titles to the un- 
granted lands, during the life of the first proprietary, and for some 
years after his death. The population and resources of the co- 
lony, at the death of the first proprietary, had increased to such a 
decree, as to render unnecessary these inducements to settlers; 
and this general mode of acquiring lands under plantation rights, 
which had in the first instance admirably answered the purposes 
of its institution. Was now becoming productive of extortion and 
abuses. It was therefore entirely abolished by the new proprie- 
tary in L663: and a new system was then adopted, under which 
all persons wore permitted to sue out warrants for lands upon 
payment of a definitive amount of purchase money, which was 
called "caution money,'" because no warrant could issue until it 
was paid or secured. (9) Thus was fully introduced the system 
of granting, lands which has prevailed here until this day. The 
amount of the caution money was regulated from time to time by 
the proprietary's proclamations and instructions; and although 
of small amount, at some periods it must have produced a consi- 
derable revenue. Vet there are no records of the province, uor 

documents within our reach, which enable iis to state what was 
the amount received under it by the proprietary at any time. 

This proclamation of ISA May, 1683, maybe seen at large in Kilty's 
I.:ifi«lli..l.I. r- 1 Assistant, 184 It relates: "that whereas the taking up of 

lands, by rights, in the province, hath proved not only grieVOUl :> n<l linrthm- 

■ome to the inhabitants, as well for want of such rights upon their occasions 

• and extortious rates n hen to be pro- 
; ; but also very injurious and prejudicial to ourself by undue and unjust 
ide of raefa rights as we have seen and bees informed, therefore, 
i es the cause of the change above m Dtk»sd 



174 THE PROPRIETARY [Hist. View. 

We can therefore only describe the caution system, and advert to 
it generally as a source of proprietary revenue. 

Fines for alienation were the incidents of the feudal tenures 
Alienation fines, generally, as they originally existed in England. 
They appear to have belonged as well to the socage 
tenure as to that in chivalry; and the same feudal reasons 
existed for their connexion with both. In their origin the feu- 
dal grants imposed mutual obligations upon the landlord and 
tenant to preserve unbroken the relation which they created, 
unless the change of it was authorised by the assent of both par- 
ties. They carried with them an implied contract; on the part of 
the tenant that he would not alien the lands held by him without 
the consent of the lord of the fee, and thereby impose upon him 
a new tenant who was not in his contemplation at the time of the 
grant ; and on the part of the lord of the fee, that he would not 
transfer his seignory to a new landlord, and thereby subject the 
tenant to a service which he had never anticipated. Whilst these 
mutual obligations existed in full vigor, they constituted the most 
endearing feature and effectual preserver of the feudal relation. 
But the lords of the fee soon emancipated themselves from this 
restraint ; and the obligation, ceasing to be mutual, became a 
mere instrument of extortion from the tenant. The former, be- 
in a themselves under no restraint, would not grant to the latter 
the license to alien, without compensation ; and if they aliened 
without license, the land was forfeited. The abuses of this power 
were at length regulated in England by the statute 1st Edward 
3d, chap. 12th, which fixed the fine to be paid by the tenant for 
the privilege of conveying away his lands at the one-third of their 
yearly value; and the forfeiture for alienation without license at 
the full yearly value. Such was the origin of fines for alienation, 
which existed in England as the incidents of the socage tenure, 
at the time when the charter of Maryland was granted. In Eng- 
land, having been suspended by the commonwealth dominion, 
they were at length utterly abolished in 10G0, immediately after 
the restoration of Charles II. by the statute 12 Charles II. chap. 
24. To the province of Maryland they were transplanted with 
the socage tenure ; and here, notwithstanding their abolition in 
the mother country, they continued to exist until the American 
revolution. It does not indeed appear that they were noticed 



Chap. I.] GOVERNMENT OF MARYLAND. ]7~> 

in the early instructions or conditions of plantation ; or that they 
were collected in the Bret years of the colony. This may be, in 
Bome measure, accounted for by the nature of the plantation 
rights. Yei these fines were the incidents of the tenure, as it 
existed when established in the province; and they therefore 
followed it without express reservation. The first notice of 
them, which we find, is contained in the conditions of planta- 
tion of the 22d September, 1658, which directed, that in all grants 
issued thereafter upon plantation rights, there should be reserved 
upon the patent one years' rent for a fine, to he paid upon every 
alienation of the land granted, such rent being estimated by the 
rent reserved as quit rent. The officer issuing the patent was 
also directed to insert in it a condition, that the tenant should 
not alien the land without entering the alienation either upon 
the records of the provincial court or those of the county in 
which the land lay, and that the fine should be paid before ali- 
enation, or else the alienation to be void. Thus were they fully in- 
troduced, and thus they existed until the revolution. When the 
commutation for the quit rents was agreed upon and fixed by the 
act of 1071, chap. 11, the alienation fines were included in it, and 
also in that of the act of 1717, chap. 7, which was substituted for 
the former. The latter act having expired in 1733, these fines, 
as well as the quit rents, became payable in money, and continued 
thus payable until the revolution. Devises being a species of 
conveyance, alienation fines were charged upon these as upon 
alienation inter VIVOS; bu1 alter the fall of the commutation sys- 
tem, they were considered by the inhabitants of the province as 
a great grievance. At the session of Assembly, in 1731). a series 
of resolves, declaratory of the grievances of the province, were 
adopted by the lower bouse, one of which was particularly aimed 
at alienation fines on devises: and the proprietary at length 
s i « • 1 « 1 1 1 1 ir to their wishes in this particular, the lines on these were 
utterly abolished in 17 1.?. | 10) 
The proprietary revenue Sowing from other sources than his 
land rights, arose principally from the port or ton- 

venue nn-iiu- ""-i '/"'.'/, the tobOCCO 'lull/- mill the Jims. fni/iillirrS 

<*,. mill amercements. From the year 1739 until the 

They were abolished by governor Bladen's pox Lunation of 20th 
October, I 



17G THE PROPRIETARY [Hist. View. 

American revolution, the proprietary claim to these revenues 
was the source of continual and embittered contests, between 
the lower house of Assembly and the governors of the pro- 
vince. The journals, throughout that period, abound with re- 
solves and addresses, denying the proprietary's right to them, and 
denouncing the collection of them as illegal and oppressive. 
Enduring until the close of the proprietary government, the levy- 
ing of them was always a part of the public grievances of the 
moment ; and it even entered into the causes which produced 
the final overthrow of that government. Occupying, as they did, 
so large a space in the transactions of the colony, and constitu- 
ting important branches of revenue, we shall be pardoned for 
briefly adverting to the origin and history of these duties. 

The Port or Tonnage duty originated in the act of 1646, 
Port orTonnage c h a P« 1> entitled "An act for customs." This act 
Duty- was passed immediately after the disturbances oc- 

casioned by Clayborne and Ingle's rebellion, and gave to the 
proprietary a duty of ten shillings per hogshead on all exported 
tobacco, besides a small duty on wines and hot waters, (as they 
were called) to enable him to defray the expenses incident to 
that rebellion. It was found soon too oppressive in its effects 
upon the infant commerce of the colony, and its operation was 
therefore suspended by the proprietary, at the instance of the As- 
sembly, by whom a duty was granted, in lieu of it, of the same 
amount, on all tobacco exported in any Dutch vessels not bound 
to any of the English ports. (11) In 165S, and after the govern- 
ment had been recovered by the proprietary from the protector's 
commissioners, this suspending act of 1649, being a mere tempora- 
ry act, had expired ; and to prevent the revival of the act of 1646, a 
new agreement was made between the Assembly and the gov- 
ernor, which led to the passage of the act of 1661, chap. 7. This 
act repealed that of 1646, and gave to the proprietary a port and 
anchorage duty of one half pound of powder and three pounds of 
shot, or their value, "on all vessels trading to the province and 
not owned in it, having a deck flush fore and aft." This act of 
1661 was confirmed amongst the perpetual laws by the act of 1676, 
chap. 2d, and the discrimination made by it between foreign ves- 
sels and those owned in the province, rendered more definite by 

(11) 1649, chap. 9. 



Chap. I.] GOVERNMENT OF MARYLAND. 177 

tin- act of 1682, chap. 4. The duty itself was soon commuted 
for a money duty of 14d, per ton. Upon the occurrence of the 
Protestant revolution, by which the proprietary was deprived for 
a considerable period of the government of the colony, the house 
ol Assembly claimed the revenue under this act as a public fund, 
ami passed an act appropriating it for the support of govern- 
ment. The crown, acting under the opinion of Trevor the soli- 
citor general, disallowed this act, and decided that this duty was 
a part of the personal and private revenues of the proprietary, 
which did not pass from him with the government. Under this 
decision, he was permitted to collect it until the restoration of his 
government in 1715; and after that restoration, it appears to 
have been received and enjoyed by him in his own right, without 
interruption or question, until the year 1739. The dissensions 
of that period brought it up amongst the public grievances; and 
from that moment until the proprietary power was ended, al- 
though it was still received and applied as the personal revenue 
of the proprietary, the lower house of Assembly waged against it 
an unceasing war of resolves and addresses. They returned to 
the allegation of the A=>scmbly of IGihl, "that it was, in its ori- 
gin, not a port but a fort duty, given to the proprietary for the de- 
fence of the province; and that being thus public in its nature 
and uses, it had been repealed by the general repealing act of 
1704." Although their manifestoes had not the effect of re- 
moving the duty, or of procuring its appropriation to public uses, 
they were not without their bonelits. They familiarised the 
people to the notion, that all taxes and impositions not sanctioned 
by their assent were illegal ; and inculcated proper views of go- 
vernment, by continually presenting their rulers to their conside- 
raJtion U the mere trustees of the public. The only estimate 
which we have of the amount of this revenue is that of the lower 
boose in l?<>o ; which rates it at from 900 to £1200 sterling per 
annum. (12) 

(12) The report of the committee of accounts, of 10th December, ITU."., 
estimates the annual revenue from it at from loni) to £1200 sterling. The 
e from the lower to the D] , of 16th December, 17G5, states 

the receipt, lu be upward* of X'JUU sterling annually. 

23 



178 THE PROPRIETARY [Hist. View. 

The Tobacco Duty, which is generally denominated, in the 
proceedings of the Assembly, the 12d sterling per 
TheTobacco hogshead, originated in the act of 1671, chap. 11. 
This act imposed a duty of two shillings sterling 
per hogshead on all exported tobacco, of which the one half was 
given for the defence of the province and the support of govern- 
ment ; and the residue to the proprietary for his own use, in con- 
sideration of his agreement to receive tobacco for his quit rents 
and alienation fines, at the rate of 2d per pound. Its provisions, 
which were originally limited to the life of the first proprietary, 
were continued during the lives of Charles Calvert, and his in- 
fant son, Cecilius Calvert, by the subsequent acts of 1674, ch. 1, 
and 1676, chap. 3. Upon the occurrence of the Protestant re- 
volution, the proprietary's title to this branch of revenue was also 
drawn into question; but upon his signifying his willingness to 
adhere to the conditions of the grant, his title to the one half of 
this duty, as his personal revenue, was sustained by the crown ; 
and during the interval of the royal government, the proprietary 
continued to collect it for his own use. The lives, during which 
these acts were to continue, having at length fallen, a further 
agreement for the commutation of his fines and quit rents 
was made in 1716; and finally in 1717, by the act of 1717, 
chap. 7, they were purchased out by the Assembly. This act 
of 1717, gave to the proprietary, for his own personal bene- 
fit, a duty of two shillings sterling per hogshead, or four pence 
sterling on every hundred weight of tobacco exported in box, 
case, chest or barrel, and so pro rata, in full discharge of his 
rents and fines : and being temporary, it was continued by 
various acts until October, 1732, when it was suffered to expire. 
The one half of the duty of two shillings sterling, which was 
originally given for the defence of the province and the sup- 
port of government, was all that now remained of it. This, as a 
public fund, the proprietary was divested of at the time of the 
Protestant revolution; and it was then applied to the support of 
the government. Under the last of the acts passed for its ap- 
propriation during the royal government, the act of 1704, chap. 
42, this duty of 12d per hogshead was given to the Queen, her 
heirs and successors to the throne of England, for the support of 
their government, for the time being, over the province ; and 



Chap. I.] GOVERNMENT OF MARYLAND. ]79 

was principally applied, under the direction of the crown, to the 
support of the royal governor. From the restoration of the pro- 
prietary in 1715 until 1733, the duty does not appear to have 
been collected, because of the enlarged revenue given to him 
by the temporary commutation acts existing during that pe- 
riod ; but upon the expirationof those acts, the tobacco duty 
wholly ceasing, and the proprietary being remitted to the col- 
lection of his rents and fines according to the tenor of his 
grants, the collection of the Hd duty under this act of 1704 was 
resumed. It appears to have been collected from that period 
until 1739, without any direct opposition on the part of the As- 
sembly. At this latter period, the propriety of its collection was 
drawn into question by the committee of aggrievances of the 
lower house, which then reported, that it was a duty applicable 
by its express terms only to the royal government, and as such 
became extinct by the restoration of the proprietary ; and that 
the collection of it was an assumption of the power of levying 
money under the pretence of prerogative, which was inhibited 
even to the kings of England. To evince that they were con- 
tending only for the principle, they agreed to secure to the go- 
vernor by law, the same amount of duty; and they accordingly 
passed an act for that purpose, the preamble of which is worthy 
of preservation, as exhibiting the same sentiments in relation to 
the proper source of taxation, which were triumphantly main- 
tained at the era of the American revolution. "Your excel- 
lency (say they, in their message to the governor proposing this 
law.) i> too well acquainted with the nature of the British con- 
stitution to he informed by us, that it is the peculiar right of his 
majesty's subjects not to be liable to any tax or other imposition 
but what i> hi id upon them by laws to which they themselves are 
a party ; and we do with the greatest sincerity assure your excel- 
lency, that it i- in pursuance of this, our undoubted right, and for 
no other cause, that u e give you the trouble of this address." 
The preamble to the act itself Beta out, "thai it m not their in- 
iention to deprive the governor of an honorable support, but only to 

assert mid maintain to th< nisclrts, tin ir constituents, and posterity, 

that principal and most essential branch of liberty, to which they 
conceive themselves entitled, as subjects of Ureal Britain, of not be- 
ing liable to the payment of any money, tax, impost, or duty, ex- 



180 THE PROPRIETARY [Hist. View. 

cept such as shall be warranted, raised, and assessed by the laws of 
theprovince." The act itself was not acceptable to the governor, 
because it was temporary. It failed: and from that period until 
the American revolution, the collection of this duty was continued 
in defiance of all the remonstrances of the lower house of As- 
sembly. That body, however, never yielded its opposition. The 
controversy was revived in 1750, and the lower house then 
adopted certain resolves, denouncing the levying of the duty as 
illegal, which became the standing resolves of the lower house, 
even down to its latest sessions under the proprietary govern- 
ment : (13) and on the frequent after occasions, when this house 
thwarted the views of the governor or his council, they continu- 
ally appealed to the levying of this duty as a part of their justifi- 
cation. The revenue arising from it was estimated by the lower 
house in 1765, at £1400 sterling per annum. (14) At the suc- 
ceeding session of May, 1766, under a call from the lower house, 
the actual receipts from this branch of revenue from the 29th 
September, 1759, to the 29th September, 1765, were reported to 
that house. From this report it appears, that during these six 
years it had yielded £9,263 Is. 4$d. sterling ; and therefore the 
average annual amount was a little upwards of £1543 sterling. 

(13) The following were the standing resolves alluded to in the text : 
Resolved, That the levying and taking of the sum of 12d. sterling by the 

right honorable the lord proprietary of this province, on all tobacco export- 
ed out of the same, [under pretence and color of the act of 1704, is not war- 
ranted by law. 

Resolved, That if the above act of 1704 had been in force from the restora- 
tion of the government by the crown to the lord proprietary, to this time, yet 
the sum of threepence sterling, part of the said sum of 12d sterling, agreea- 
ble to the plain construction of the above mentioned act of 1704, and her 
late majesty queen Anne's instructions to her governor here, when the said 
act was in force, ought to be applied towards the purchasing of arms and 
ammunition for the defence of the province. 

They were re-adopted by the lower house, at many after sessions. See the 
journals of lower house, May 31, 1750. 8th June, 1751. 13th December, 
1754. 30th September, 1757. 24th October, 175S. 17th March, 1762. 2d No- 
vember, 1765, and 3d October, 1771. 

(14) Report of committee of accounts of 10th December, 17C5, and mes- 
sage of lower house of 16th December, 1765. 



Chap. I] GOVERNMENT OF MARYLAND. 181 

The common law fines and forfeitures imposed in the courts of 

the province, enured to the proprietary, as the head of the 

government, and the fountain of justice in the colony. Being 

incident to his relation as governor of the pro- 

Tlie revenue from . _. . , , , 

c.mmun law fines v i nce : when he ceased ol be such by the happen. 

ami forfeiture, and . 

MDeicJameati j n(T of the Protestant revolution, it was properly 

,1, ruled, that his °rig ht t0 them P assed with his g overnment t0 
the crown. Upon his restoration, his title to them returned as 
its incident. There were also a great variety of fines impo- 
sed by acts of assembly, the whole or a portion of which were 
granted to the lord proprietary by the acts imposing them, either 
for specific purposes, or generally without limiting their uses. 
The amerciaments were finally regulated under that government 
by the act of 172-2, chap. 12, under which, those in the county 
courts were applied to the payment of the county charges; and 
those in the provincial courts, were to be disposed of as the gover- 
nor and council might direct. These fines and forfeitures at 
common law, or under acts of Assembly giving them to the pro- 
prietary without limiting their uses, and the provincial amercia- 
ments, were regarded and applied by the proprietary government, 
a. a proprietary fund, in which the public had no interest, and 
this disposition of them was for some time unquestioned. As the 
exigencies of the government increased, and new demands were 
made upon the people for supplies to meet those exigencies, the 
attention of the lower house of Assembly was at length directedto 
these sources of revenue, as proper to be called in aid of the pub- 
lic necessities. At the session of 1745, they solemnly deter- 
mined, that this revenue was a public fund; that the proprietary in 
receiving it, was a mere trustee for the public; and that, at all 
events, if it belonged to him personally, it was given to him in 
consideration of his support of the government, and relieved the 
p. nplc from tin- obligation to provide other means for that pur- 
poee. The controversy thus opened, the refusal to apply this 
fund to public use.- became a Btanding complaint in the colony, 
which never ceased until it was merged in the revolution. (15) The 

(15) There is a very able and elaborate rep at apoa tin', sui>joct of da' propria- 
tar) title to these fines, forfeitures and amerciaments, v. bich appears an the 
journal of the lower house in 17C5. It was made by William Munlork, a 
delegate from Prince George's county, who was also very eowpiouOUl at 



182 THE PROPRIETARY [Hist. View, 

annual revenue from the fines and forfeitures, was estimated by the 
lower house, in 1765, at upwards of £400 currency ; and the 
provincial amerciaments, at upwards of 2500 pounds of tobacco. 
Their estimate as to the amerciaments fell greatly below the 
actual receipts ; for it appears from a report as to these, made to 
the lower house in 1767, that they had yielded in six years, from 
September, 1659, to September, 1765, 42,900 pounds of tobacco; 
or an average annual amount of about 7130 pounds of tobac- 
co. (16) 

The lord proprietary enjoyed also certain personal rights, as- 
incident to his office and dignity, to which we shall briefly advert. 
He had a preference in the payment of all debts due to him. (17) 
Personal rights Since the revolution, it has been determined that 

incident to the 

office and dig- the reasons of the doctrine, " Nullum Tetnpus oceur- 

nity of the pro- M . ,, . .... 

prietary. rit regi, did not apply to his situation ; and that 

he was therefore within the operation of the statutes of limi- 
tation, although not expressly named. (18) But the contrary 
opinion appears to have been maintained before the revolu- 
tion. (19) Whether he could sue and be sued in his courts, has 
also been a debated point. It appears that suits were frequently 
brought in his name as plaintiff, and the established doctrine 
seems to have been, that he might sue in his own courts; but 
there is no precedent of an adversary suit against him. (20) The 

that period, for the part which he sustained in the transactions of the pro- 
vince, with reference to the stamp act. This report is a stale paper, which 
would reflect honor on any man or any assembly. 

(1G) See the journals of 10th and 16th December, 1765, &c. Many of 
the messages, connected with the various controversies about these branches 
of revenue, are written with great vigor and even elegance of style. They 
breathe every where the spirit of men, who had never been tamed to submis- 
sion, and who were as familiar, as we of this day, with the proper uses of 
government. They shew us a people trained to independence before it came. 
Such is particularly the case with the messages at the session of 1765. 

(17) Act of 1650, chap. 23. 

(18) Kelly's Lessee vs. Greenfield, 2. Harr. and M'Hen. 138 ; and Rus- 
sell's Lessee vs. Baker, in 1800, 1 Harr. and John, 71, where the question 
was very fully argued. 

(19) 1 Harr. and M'Hen. 151. 2 Harr. and M'Hen. 279. Martin's Argu- 
ment in 1 Harr. and Johns. 82 and 96 

(20) 2d Harris and M'Henry, 374 and 339. 



Chap. I.] GOVERNMENT OF MARYLAND. 1S3 

weight of the reasoning was unquestionably against the propriety 
of permitting suits to be maintained, either by or against him in 
his own courts; (-21) but the practice of those courts having 
admitted and sanctioned his right to sue in them, the whole force 
of the objection to the maintenance of suits against him, was 
thereby destroyed. His right to sue being conceded, it lias there- 
fore been determined in our courts since the revolution, that he 
might also be sued in them. (22) 

The summary view of the proprietary government, above given, 
presents to us all its prominent features and tendencies; and 
the review of them is calculated to inspire the citizens of Mary- 
land with feelings of pride and gratitude. It was indeed a colo- 
nial government, and subject to thraldoms which we have never 
known. Yet it was a government of lairs adm in istt red by freemen, 
and the nursery of our free principles and institutions; and in 
contrast with all the colonial governments of that day, we may 
truly say of it, "It was full of power and privilege to the subject." 

(21) See the opinion of those distinguished lawyers, Francis Margrave and 
Daniel Dulany, in 2d Harr. and M'Hen. 345 and 3.~>!J. 

(.'alyert's Lessee against Eden and others, 2d Harr. and M'Hen. 339. 



CHAPTER II. 



THE HISTORY OF THE GOVERNMENT OF MARYLAND, FROM THE 
COLONIZATION UNTIL THE PROTESTANT REVOLUTION. 

Texkk arc three prominent periods in the colonial history of 
Maryland, anterior to the year 1763, each of which may be con- 
sidered as the commencement of a new aera in the history of its 
government and the character of its institutions. The first of 
these aeras begins with the colonization of the pro- 
£S! instory^f vince, and terminates with the year 1688. The 
M:iryla " d - second commences at the latter period with the in- 

ternal dissensions, which led to the formation of the Protestant 
association, and through its instrumentality to the overthrow of 
the proprietary government; and extends over the whole inter- 
val of the royal government, established upon the downfall of 
the proprietary power. The third aera extends from the res- 
toration of the proprietary government in 1715, to the treaty 
concluded at Paris in 1763. The origin of each of these 
aeras is identified with the establishment of a new government; 
and it gives us an advantageous and commanding position, on 
winch we may pause to survey the general character and results 
of the government which preceded it. Such resting points for 
the review of the transactions of the past, always assist the in- 
quiring leader, in carrying along, in one connected view, the 
-.Jand effects of national rise 01 decline, and in marking 
then reciprocal operation and combined reflate. From the treaty 
p ire may properly date the commencement of the two- 
ktionary m m, a aich terminated in our independence ; and during 
which, the annals of Maryland contain oothing but the history 
of her resistance to arbitrary power, and of her triumph over 
oppression. Hei government and all hei institutions, had then 

obtained the foam, rtrength and consistence, which they preaen i d 
24 



186 HISTORY FROM THE COLONIZATION [Hist. View. 

until the revolution. Her internal power and resources were 
all developed: the character of her people already formed; and 
their notions of political and civil liberty already matured. Ac- 
quainted with these, then and not until then, we are prepared to 
enter upon the history of her revolutionary struggle. 

In the colonial history of Maryland, throughout the period 
The Colonial his- which preceded this struggle, the events imme- 
l'uul.iisiiM^u.sh'- diately connected with the introduction of each of 
Md^than by 'in- the a;ras a h'eady alluded to, constitute nearly the 
whole of what may be termed its external history, 
in contradistinction to that of the mere internal administration 
of its government. It embraces a period of one hundred and 
thirty years, in the progress of which a little band of two hun- 
dred emigrants, seated at a single point on the southern ex- 
tremity of the province, had become a wealthy, populous and 
self-relying colony, diffused over every portion of it, and carry- 
ing to its every border the arts and enjoyments of civilized and re- 
fined life. The war-whoop had given place to the hum of busy and 
contented industry. The deep, dark forests, which had been 
soiled only by the trace of the savage, had been succeeded by 
the fields of the husbandman. It was no longer the red man's 
home and heritage, and " the very places which once knew him 
now knew him no more for ever." Yet these moral and political 
changes, effected by this settlement, were but the noiseless re- 
sults of its gradual extension ; and have brought down to our 
times but few of those lofty enterprises, daring achievements, 
extraordinary occurrences, or peculiar traits of character, which 
illustrate a people, or give interest to history. 

Colonial History, in general, presents to us but few of those spi- 
rit-stirring incidents which enter into the transactions of full 
grown and established nations. It is but the history of a peo- 
ple's infancy ; and with the great body of mankind, the adven- 
tures of an infant people awaken as little interest 

Causes which <]i- , . ,. . . ., c • 

minisii the inter- and command as little attention, as those 01 an m- 
instory gener- dividual's infancy. They want that strength and 
power, and those far reaching views and enterprises, 
which import a kind of moral sublimity to national transactions. 
They exhibit none of those sudden and extraordinary results, 
which extend their operation to other nations. They relate to a 



Chap. 11.] TO THE PROTESTANT REVOLUTION, 187 

people, whose distinct and peculiar existi nee as Buch, lias not 

been of sufficient duration to give them a distinct and peculiar 

character; or to give interest to their transactions, either by the 

illustrations which they afford of that character, or by borrowing 

lustre from it. 

The nature of the occupations and pursuits of colonics, in the 

Deficiency in the first years of their establishment, is not calculated 

materials nei 

■ary for the early to evolve events deeply interesting to the ajre in 

history of Colo- . 

nies. which they occur. The infancy of colonies, as 

well as that of individuals, is busied about self improvement 
and establishment ; and in preparing themselves for the part 
which they are to play at maturity. The individual, in youth, 
is devoting himself to the acquisition of knowledge, and the 
discipline of mind and body, which lit him for his intended 
pursuit in life. The infant colony is gradually extending its 
settlements, increasing its population, enlarging its resources, 
and accommodating its institutions to its gradual advanco ; and 
many years must elapse, before it acquires thai strength, con- 
sistence, and reliance upon self,- which are necessary for the 
development of its energies, or give it consequence in the 
eyes of Others. The age in which it springs up, docs not 
begin to feel a lively interest in it, before it has acquired these ; 
and then the interest begins too late for the collection and pre- 
servation of its early history. Here again, the parallel holds 
good between individuals and nations. When the manhood of 
the former has been rendered conspicuous by displays of virtue 
or ability, then, and not until then, is tin.' public curiosity di- 
rected to their infancy for its early promises ami pursuits, and 
then but little remains to be gleaned from the recollections of 
those who observed them. The individual himself km w nut 
ln> nun power, --iu uot in the brighl future the space winch lie 
destined u, occupy in the public mind, ami did not mark the 
traces of Ins own course. So n is with nations; ami hence it is 
that so feu memorials of their early history are preserved. That 
which is preserved, i- L r <'iierally that which i- Least worth 
preservation. The pigmy warfares and marauding expeditions 
of a colo little importance in it We w ish in 

know merely ral condition, the circumstances which 



188 HISTORY FROM THE COLONIZATION [Hist. View. 

formed the peculiar habits and character of the colonists, and the 
sources of the institutions which they have transmitted to us ; 
and unfortunately, the transactions from which we could princi- 
pally collect these, are connected solely with its internal and do- 
mestic administration, of which the accounts we have, are often 
neither copious nor authentic. 

Besides these general causes, there were others peculiar to 
Maryland, which tended to deprive its mere civil history of 
the incidents calculated to give it interest with the great body of 
readers. Men do not, in general, look into history, for the 
The Colonial ad- transactions of a calm, gentle and contenting ad- 
»iaryiand',' n not ministration of government. The records of the 
vniv'e'^tri'king m ^^ an< ^ noiseless display of benevolence and 
virtue, either in public or private life, too often 
sleep upon their shelves. The gradual accessions to a nations' 
wealth, power ^ and liberty, which she derives from a peace- 
ful devotion to her own interests, are perceived only in their 
general results ; whilst in the transactions of periods of tur- 
bulence or warfare, the results are overlooked for the incidents. 
Such is our nature, that the memorials of high-reaching ambition 
or daring crime are sought with avidity, whilst those of virtue, 
more lofty in its aim and diffusive in its ultimate operation, are 
left to their slumbers; and the campaign of Italy has more inte- 
rest, than the story of our own country rescued from the wilder- 
ness and advanced to happiness and independence. The admin- 
istration of the colonial government of Maryland was, in general, 
mild and peaceful; and hence, except at one or two periods of 
short duration, it evolved but few of those striking transactions, 
or peculiar displays of talent and character, which are brought 
forth by occasions of excitement. It has not even the Indian 
wars, which give a spice to the history of some of the northern 
colonies ; for its course towards these primitive owners of the 
soil, whilst it secured their subjection and obedience, yet tolera- 
ted their existence, and extended to them the protection of its 
laws and the duties of humanity. Religious persecution, beyond 
the denial of public trusts and employments, was almost a 
stranger to the province ; and we have therefore no accounts of 
martyrdom to stain its annals. 



Chap. II] TO THE PROTESTANT REVOLUTION. 189 

The establishment of its institutions makes up its history; and 
the view which we are about to take of the trans- 
LMtoJ serin actions of the province, is limited to such a general 
t&]£m£ consideration of them as will suffice to illustrate 
BT d 2£jS£ the establishment of the former. The scanty mate- 
rials which our records furuish, would not permit 
us to extend our views beyond this, even if it were desirable ; 
and they leave us at last without any aids to illustrate the character 
and motives of individuals, whose transactions were identified 
with those of the colony., except such as can be collected from 
the transactions themselves. At this period, so far removed 
in time and character from the age in which they lived, their 
tr -mictions themselves do not reveal to us the secret springs of 
action the lurking motive, and the ultimate design, the know- 
ledge of which alone can give accuracy to the portraits of history. 
Without these, history is but a detail of names, places, and dates ; 
and nothing could furnish them, but the personal observation of 
those who were around the actors and mingled in the acts. 
Neither history nor tradition now lend us such aids as to the 
transactions of the colony; and in many instances, even these 
transactions themselves are lost to our view, or the accounts 
which we have of them barely indicate their existence. If 
therefore, in the accomplishment of our design, limited as it is, 
we should fall short of the expectations of the reader, we would 
indulge the hope that he will, at least in some degree, ascribe 
,ts imperfect execution to these causes, beyond the control of the 
writer. (1) 

(1) « The annals of Maryland (says Dr. Ramsay) are barren of those strik- 
ing events which illustrate the page of history. This is probably the reason 
tha *u little of its ntotorj DM been published. Its internal peace in the pe- 
riod of tafcnej, WU but little disturbed, either by Indians or insurgents, 
lll(lli , h Dot wholly exempt from cither. Its early settlers loved the.r king 
and uv.r proprietary. Thej were notgiven to change, but attached to ancient 
for,,.- fe il aatiM BOUntryanq its constitution." (Ramsay's History of the 
United States roi L p. M4.) H« illustrates this barrenness, by compress- 
ing it. whole colonial history Into four pages, it is the strongest testimony 
to prorethe p* ■<"' contented condition of the colony, which he 

could hu-.. lumaelf seems to hare considered it His 

eencral remark it the causes by which he accounts for it, rail Short 

, actually produced ,t. The] v.,, attached to /em., only 



190 HISTORY FROM THE COLONIZATION [Hist.JView. 

The early settlements of the English colonies, within what are 
now the limits of these United States, were, in general, similar 
in the causes and circumstances of their establishment. It was 
The desire for not tne mere spirit of enterprise, the thirst for gain, 
g'iou's liberty the nor tne l° ve °** novelty, which impelled the early 
?he setuement of emigrants to forsake their native land, and to sever 
n!L En in isl N C o rtii a11 the ties which bound them to the homes of their 
America. fathers. It was not for these alone, that they were 

content to go forth as wanderers from the scenes of their infan- 
cy, and the attachments of their youth. It was not for these 
alone, that they took up their abode in the wilderness ; made their 
dwelling with the savage ; and encountered with cheerfulness 
and alacrity, all the privations and dangers of a country not yet 
rescued from the rudeness of nature. These causes may have 
contributed, and no doubt did operate in peopling these colonies, 
but we must look elsewhere for the primary causes of their 
establishment, and the true sources of their rapid increase in 
wealth and population. This, their new home, had other 
charms for them: and the history of the times, and the language 
of the emigrants, tell us what these were. They sought free- 
dom from the civil and religious shackles, and oppressive institu- 
tions, of their parent country ; and here they found, and were 
content to take it, with all its alloy of hardship and danger. Too 
inconsiderable to attract the attention, or provoke the indigna- 
tion of the parent government ; too remote to be narrowly ob- 
served in their transactions, or to be reached by the speedy arm 
of power: here, unharassed by the old and corrupt establish- 
ments of their native land, yet cherishing all the genuine princi- 
ples of English liberty, might they spring up to consequence and 
happiness. Here, unchecked in their infant operations by the jea- 
lousies of the parent, they might be permitted to lay, broad and 
deep, the foundations of their civil and religious liberties ; and here 

when they carried with them the substance c-fliberty. With them, age never sanc- 
tified usurpation, nor acquired respect for arbitrary power. As to the extent 
of their rights, they were guided by the best lights which the age afforded ; 
and once satisfied of their existence, they maintained them to the last. They 
never, on any occasion, wilfully abandoned these to bow the knee to the Baal 
of Prerogative. Mr. Ramsay has, therefore, very justly characterised their 
colonial administration, as generally full of freedom and gentleness, and 
their colonial condition as one of happiness and prosperity. 



Chap. II.] TO THE PROTESTANT REVOLUTION. 191 

they might hope to transmit them to their posterity, in all their 

freshness and purity. 

The strength of these inducements can readily he collected 

Iron, the condition of England at that period, as presented to us 

by its most approved writers. The age of almost unchecked 

nrerocrative, which had succeeded to that of baro- 

"■" ** ye nhil turbulence and anarchy, was yet in its vigor 

peculiar energy „, ,. 

to tins desire. w h en the early settlements were made. 1 he reli- 
gious establishments of the land had changed ; but the spirit of 
intolerance, and the arm of civil power and oppression, were 
still there to sustain them, to repress the spirit of free inquiry, 
and to trample to the dust the holy rights of conscience. The 
Commons had risen to consequence and power, as an integral 
part of the nation ; but the wanton exercise of prerogative was not 
yet effectually restrained. Arbitrary and oppressive proclama- 
tions usurping the place of legislative power, and even trans- 
cending it, were yet issued and enforced ; (2) the power to dispense 
with laws was yet exercised ; and the days of the Star-Chamber 
were not yet numbered. The character of that age was one 

(•->) A singular specimen of the proclamation power, will be found in Ander- 
sons Treatise on Commerce, 2d vol. 463. It recites, « that whereas by the 
residence of the nobility and gentry, with their families, in the city of 
London, a great part of their money and substance is drawn from the severa- 
counties, whence it ariseth, and spent in the city on excess of apparel provi- 
ded from foreign ports, to the enriching of other nations, ad the unnccessa ry 
consumption of a great part of the treasure of the realm ; and in other vain 
delights and expenses ; and that it draws a great number of loose and idle 
na to London :" And it therefore commands them to depart from Lon- 
•ritfa their families, in forty days, and to reside on their estates. If they 
rted, Siar-G were the consequence ; and the king pocketed the 

fines. This was a proclamation of king Charles I. issued in 1722 : and it has 
many fiOowt in the proclamations issued some years before and after the char- 
ts of Maryland. NothmgWBJ too elevated or too low, to be exempt from 
their operation. About the same period king Charles issued one, prohibit- 
ing the siting of flesh on fast-days; and one still more curious, relative to 
the manufacture of taltpdn, which we must not repeat, is preserved by An- 
derson, (2d vol. 12."..) King James's proclamation war against Tcbaceo, is 
far less absurd than many Others of his reign. These reigns may be very truly 
styled iha Monopoly and Pr oclMwH o*rtig%l ; nnd a collection of the proclama- 
tions and monopoly patent! of that period, would be truly amusing. There 
was one exception to their operation— they did not tax nor monopolise Hi air. 



192 HISTORY FROM THE COLONIZATION [Hist. View. 

well calculated to call forth all the energies of tottering preroga- 
tive. The temper of the times, and the disposition of the 
English people, were adverse to it. The spirit of fearless 
research and free inquiry, which neither bolts nor bars can fetter, 
was abroad in the land, and menaced the existence of arbitrary 
power both in church and state ; and the struggle which the lat- 
ter maintained for existence, naturally led to its improper and 
inordinate exercise. It yet had power to sustain itself; and those 
who could not resist, were glad to seek a shelter from its oppres- 
sions. Here was a new world, yet unsullied by the establish- 
ments of tyranny or corruption ; and here they came to enjoy 
even its rude freedom. It is well known, that all the New 
England settlements were promoted and established, almost 
exclusively by these causes. The colony of Virginia, which 
was seated at an earlier period, looked more to commercial pur- 
poses ; but at the period when the New Plymouth and Massa- 
chusetts settlements were established, it also received accessions 
of population from the same causes. 

The character and circumstances of the grant of Maryland to 
Lord Baltimore, have already been detailed. (3) It will be 
remembered, that George Calvert, baron of Baltimore, through 
operation of whose influence and favor with the crown the grant 

these in prorfu- . , , . . , 

cing the coioni- was obtained, was the intended grantee ; and that, 

zation of Mary- . ■ ' 

land. in consequence of his death, at the moment when 

the charter was ready for passage under the great seal, it enured 
to the benefit of his son and heir, Cecilius Calvert ; to whom it 
was therefore directly granted. George Calvert was an adherent 
to the principles of the proscribed Roman Catholic Church ; and 
although, notwithstanding his religious persuasion, he still retain- 
ed the favor of the king, he was not entirely exempt from those 
difficulties and mortifications, which always attend the profes- 
sion and exercise of a proscribed religion. It was natural, that 
thus situated, he should desire to establish himself in some more 
happy land ; where, in every event, he might be free from the 
persecutions of the established church. Men are not content 
with the enjoyment, by mere sufferance, either of political or reli- 
gious liberty. The insecurity of the tenure robs them of half their 

(3) See antea page 8th. 



Chap. II.] TO THE PROTESTANT REVOLUTION. 193 

enjoyment. In Virginia, which Lord Baltimore had visited 
shortly before his application for this -rant ; and « here, it is said, 
he then purpowd to establish his residence, he was still met by 
the intolerant faith of his native land. Although the government of 
Virginia, upon his declining to take the oaths of allegiance and 
supremacy, which it had tendered to him and his followers, did 
not actually exclude him from the province, but had referred the 
whole matter to the consideration of the English privy council; 
yet his residence there was still one of mere sufferance. (4) 
Then it was that his eyes were cast upon the territory along the 
Chesapeake bay, as yet unsettled, and by the amoenity of its 
situation, and the fertility of its resources, inviting him to its 
retreat. Here, if he could but obtain a grant of it from the 
crown, he mighl dwell in his own territory and under his own 
government; and build up in the wilderness, a home for religious 
freedom. These were the leading views which seem to have 
operated upon him, in applying for the charter of Maryland ; 
and but for his untimely death, at the moment of accomplishing 
feu wishes, it is probable that he would have removed to the 
province; an.l would here have permanently established his 
family. Hence it may be truly said, from the consideration of the 
news of its founder, and of the character and objects of its 
firsl colonists, that the State of Maryland, as well as the New 
England states, originated in the search for civil and religion's free- 
dom ; and the character of the former, is still further consecrated 
by the fact, that her government, for a long period after the colo- 
nization, was true to the principles which laid the foundation of 
the colony. Her colonists, in escaping from the proscriptions and 
p. i-ecutions of the mothei country, unlike those of some of the 
puritan settlements of the north, did not catch the contagion of 
the spirit which had driven them from their homes. 

CeeOnu Catvert, although not animated by the same personal 

Views which governed his father, inherited aU his energy and 

r:i | designs, as to the colonization of the province. As 

(4) Bee ant.-:,, page 9, note 11; and the facts there stated, and the autho- 
rities referred to : which furnish a full account of his visit to Virginia, and 
of the manner in which he was received there. 



194 HISTORY FROM THE COLONIZATION [Hist View. 

soon as the grant was passed, he commenced his 

Establishment of 

the first colony preparations for the establishmenl of a colony; and 

under the char- 
ter of Maryland, originally, intended to have accompanied it in per- 
son. Abandoning this intention, he confided the conduct of 
the settlers to his brother, Leonard Calvert; whom he constitu- 
ted his lieutenant general or governor. The colony was soon 
formed and prepared for embarkation ; and on the 22d of Novem- 
ber, 1633, it departed from the Isle of Wight on its voyage to 
the province. The emigrants consisted of about two hundred 
persons, principally Roman Catholics; of whom, many are said 
to have been gentlemen of family and fortune. (5) They reached 
Point Comfort, in Virginia, on the 24th of February following ; 
whence, alter a short stay, they sailed up the Potomac in search 
of a site for their colony. After having taken formal possession 
of the province at an island which thoy called St. Clement's, and 

(5) These, and the following details, relative to the equipment, embarka- 
tion, and settlement of the colony, are principally collected from a work, pub- 
lished early in the last century, entitled, The British Empire in America. 
Although one of the fullest accounts of the province which has been published 
-and transmitted to us, it contains little else than these details ; and a general 
and imperfect account of the government and condition of the colony, at the pe- 
riod when it was written. The writer, himself, (Mr. Oldmixon,) was sensible of 
the imperfection of his work as to the history of Maryland, although he pro- 
nounces it the most perfect account of that province which had ever been pub- 
lished. He offers an apology for the meagreness of the history, in the fact, that 
the gentlemen of the province and elsewhere, to whom he had appliedfor infor- 
mation and assistance, had not furnished it, as those of the other colonies ; and 
concludes with the consolatory remark : " Perhaps these gentlemen would be 
as angry with themselves as with us, when they see how industrious we have 
been in the histories of those countries that we were fully informed about ; 
and what a figure they make in the British Empire in America : where Mary, 
land is far from being the least considerable portion of it." Even we of 
this day, can feel some of his indignation ; for the work was then practicable, 
and had they complied with his wishes, we might have had a copious and 
authentic history of the province up to that period. The work was written 
in 1708 and 1709, whilst Seymour was governor of Maryland. The royal 
government then prevailed here ; and the materials for its history could have 
been collected with more facility than during the proprietary government. 
Proprietary governments of rich provinces were never much admired by the 
croicn ; and hence it was neither the policy nor the disposition of the proprie- 
taries, to publish the transactions, or reveal fully the resources of their 
colonics. 



Chap. II.] TO THE PROTESTANT REVOLUTION. 195 

having proceeded, according to their estimate, upwards of forty 
ies up the rivet to an Indian town called Piscataway, the go- 
vcrnnr deemed it prudent to return, in search of a location 
nearer tothe mouth of the river. His intercourse with the (sava- 
ges at Piscataway, although he was kindly received by them, not 
only there bul throughoul his progress up the river, had excited 
his apprehensions as to the location of his colony at so high a 
point, where in the event of attack it mighl be cut off from re- 
treat. Returning down the Potomac, they entered one of its tri- 
butary rivers, running into it from the north near to its mouth. 
This river, upon which they bestowed the name of St. George's 
river, is known at this day bj the name of St. Mary's river. It 
flows into the Potomac between ten and twelve miles above its 
mouth ; and alike most of the other rivers arising in the cham- 
paign country adjacent to the bay, at its mouth, and for several 
miles above it, it is a bold, deep, and wide stream. Sailing up 
this nv.r about six or seven miles, they came to an Indian 
town on the eastern aide of the river, called " Yaocomoco," situa- 
ted immediately upon the river. The site of this town, the im- 
provements already made around it by the Indians, and the depth 
and -runty of the navigation from the Potomac to that point, 
presented every facility which the governor could desire for the 
settlement of his colony. His first act was one of justice and 
humanity towards the aborigines, which presents a striking con- 
tr;M to the firal establishment of the other colonies. What is 
now termed by some an act of cruelty, was at thai day consider- 
ed : , n ad of almosl unexampled humanity. He purchased the 
Q from ih- Indians, and established his colony within it by 
Iheirconsent In pursuance of his agreemenl with the natives, 
,!„• colonj was disembark* d at the town of Xaocomoco, on the 

27th of March, K^l- and took possession of il bj the m i of 

Sl m Then and thus landed the Pilgrima of Maryland, 

and then and thus were laid the foundations of the old city oj 
si. Mary's, ;""' "J " ll Sl1 "' '■ 

arrival ai ' Bt Mm 7' 8 > wcrc 

I nofthe natives: "Th 
. , foor of the British Empire ol 

America) was I 

governor of \ Lrginia, came 



196 HISTORY FROM THE COLONIZATION [Hist. View. 

The colony, which was thus established, was supplied for 
its establishment, by the kind providence of the proprietary, 
not only with all the necessaries, but even with many of the con- 
sagacious policy venicnces adapted to an infant settlement. Al. 

of the proprieta- , 

ry in tim estab- though many ol the first emigrants were gentlemen 

lishment of the D , . 

colony. of fortune, he did not, therefore, throw the colony 

on its resources, and leave it dependent for its subsistence 
upon the casual supplies of an unreclaimed country, and a sa- 
vage people. At the embarkation of the colony, it was pro- 
vided, at his expense, with stores of provisions and clothing, 
implements of husbandry, and the means of erecting habita- 

thither to visit him, as did several Indian Werowanees, and many other 
Indians from several parts of the continent. Amongst other Indians came the 
king of Patuxent, &c. After the store house was finished, and the ship un- 
laden, Mr. Calvert ordered the colours to be brought on shore, which was 
done with great solemnity, the gentlemen and their servants attending in 
arms ; several vollies of >hot were fired on ship-board and ashore, as also the 
cannon, at which ihe natives were struck with admiration. The kings of 
Patuxent and Yaocomoco were present at this ceremony, with many other Indians 
of Yaocomoco ; and the VV'erowanee of Patuxent, took that occasion to advise 
the Indians of Yaocomoco, to be careful to keep the league they had made with 
the English. He staid in the town several days, and was full of his Indian compli- 
ments ; and when he went away, he made this speech to the governor : "/ love 
the English so well, that if they should go about to kill me, if J had so much breath as 
to speak, I would command the people not to revenge my death ; for I know they 
would not do such a thing, except it ivere through my own fault." British Em- 
pire in America, vol. I, 327. 

It was an event worthy of celebration ; and the manner of its celebration 
attests most forcibly the liberal and humane policy observed by the colonists 
of Maryland, in their earliest intercourse with the natives. The artless, 
untutored savage, had not yet learned to dread the approaches of civilization, as 
the precursors of his expulsion from the home of his forefathers. He saw, in 
the colonists, only a gentle and conciliating people, without the power or the 
will to injure; and gifted with all that could excite his wonder or tempt his 
desires ; and in the fullness of his joy, he hailed their coming as the work of 
the Great Spirit, in kindness to himself. To the feeble emigrants, it was an 
occasion for joy, more rational and profound. Preferring all privations to 
the privation of the liberty of conscience, they had forsaken the endearments 
of their native land, to cast themselves, in reliance on divine protection, 
upon all the perils of an unknown country, inhabited by a savage people. 
They came prepared for the worst ; and fancy lent all its illusions to heighten 
the dangers of the adventure. But the God whom they had trusted was with 



Chap. II.] TO THE PROTESTANT REVOLUTION. 197 

tions; and for the first two or three years after its establish- 
ment, he .-pared no expense which was necessary to promote its 
interests. It appears not only from the petition preferred in 
1715, to the English parliament, by Charles lord Baltimore; but 
also from the concurring testimony of all the historians who treat 
of the settlement of this colony, that during the first two or three 
years of its establishment, Cecilius, the proprietary, expended upon 

them ; and He in whose hand are all hearts, seemed to have moulded the 
savage nature into kindness aud courtesy for their coming. They came ; 
they who were retreating from the persecution of their christian brethren, to 
be welcomed by the confidence and affection of the savage : and their peaceful 
and secure establishment in the wilderness, was enough to have called forth 
grateful aspirations from the coldest heart, and to have put into every mouth 
the song of joy. 

Nearly ticu hundred years have rolled by, since the voices of our forefathers 
were lifted up in the wilderness, to celebrate the joyous occasion of their 
landing and peaceful establishment, in this then desert province. The i lose of 
the second century since that event, is now near at hand ; and why should not 
the return of the day, which commemorates the landing of these pilgrims, be 
an occasion of jubilee to us ? Every nation has had its festivals, to recall in 
pride ihc recollections of its history, and to fashion and sustain the spirit and 
character of its people by the example of their ancestors. Yet where shall 
we find, in the history of any people, an occasion more worthy of commemora- 
tion, than that of the landing of the colony of Maryland ? It is identified with 
the origin of a free and happy state. It exhibits to us the foundations of our 
government, laid broad and deep in the principles of civil and religious liberty : 
It points us with pride to the founders of this State, as men who, for the secure 
enjoyment of their liberties, exchanged the pleasures of affluence, the society 
of friends, and all the endearments of civilized life, for the privations and 
dangers of the wilderness. In an age, when perfidy and barbarity but too 
often marked the advances of civilization upon the savage, it exhibits them to 
us displaying in their intercourse with the natives, all the kindnesses of human 
nature, and the charities of their religion. Thus characterising this colony, 
as one established under the purest principles, and by the noblest feelings 
winch can animate the human heart ; it presents to us, in its after-history, a 
people true to the principles of their origin. At a period when religious bigotry 
and intolerance seemed to be the badges of every christian sect ; and those 
who had dwelt under their oppressions, instead of learning tolerance by their 
experience, had but imbibed the spirit of their oppressors ; and when the 
hswlingi of religions perseentian were heard every where around them, the 
Catholic and Protestant of Maryland were seen mingling in harmony, in the 
discharge of all their public and private duties, under a free government, 
which assured the rights of conscience to all. Conducting us through all the 



198 HISTORY FROM THE COLONIZATION [Hist. View. 

it upwards of £40,000 sterling. (7) Nor did his care stop here. 
He governed it with a policy more efficacious than his means, in 
giving strength and confidence to the colony, and happiness to the 
settlers. The lands of the province were held up as a premium 
to emigrants. The freemen were convened in Assembly : and thus 
made to feel that they were dwelling under their own govern- 
ment. Religious liberty was subject only to the restraints of 
conscience — courts of justice were established ; and the laws of 
the mother country, securative of the rights of person and proper- 
ty, were introduced in their full operation. The laws of justice 
and humanity were observed towards the natives. The results of 
so sagacious a policy were soon perceived. During the first se- 
ven years of the colony, its prosperity was wholly uninterrupted; 
and when the interruption came, it proceeded from causes which 
no policy could have averted. 

The dissatisfaction of the colony of Virginia with the dis- 
memberment of its province by the grant of Maryland, and the 
unsuccessful issue of their efforts to reclaim it, have already 

changes in the government and condition of that colony, until that proud 
period, when it assumed the rank of a free and independent State ; it shows us 
still, a people who knew their rights as freemen, and who had the courage 
to assert, and the power to maintain them : a people, whose history is without 
a recollection of slavish submission to call up a blush upon the cheeks of their 
free descendants. Surely such a birth-day of a free people, is worthy of com- 
memoration to the latest period of their existence. 

The landing of the Pilgrims of New England, has been the burden of many a 
story, and the theme of many an oration. The very Rock on which their feet 
were first planted, is consecrated in the estimation of their descendants; and its 
relics are enshrined as objects of holy regard. They were freemen in search 
of freedom : They found it, and transmitted it to their posterity. It becomes 
us, therefore, to tread lightly upon their ashes. Yet whilst we would avoid 
all invidious contrasts, and forget the stern spirit of the Puritan, which so fre- 
quently mistook religious intolerance for holy zeal; we can turn with exulta- 
tion to the Pilgrims of Maryland, as the founders of religious liberty in the new 
world. They erected the first altar to it on this continent ; and the fires first 
kindled on it ascended to heaven amid the blessings of the savage. Should the 
memory of such a people pass away from their descendants as an idle dream ? 

(7) Chalmers, 208, British Empire in America, vol. 1st, 230. 2d Ander- 
son's History of Commerce, 476. 



Cbap.II.] TO THE PBOTESTANr REVOLUTION. . 199 

, h een described! (8) Sei although the title of Lord . 
Baltimore was fully sustained by the decision ol • 

tier* with the "'»ii"" • 

ir-iii "< M«ry- ..... M-own and its injunctions to the government 

Ian I, «n<l !•--""'' J 

f \ irginia, to keep up a good correspondence 
'"'•'•''' w ith his colony ; the circumstances under which it 

ined , were yet fresh in the mMsofthe Virginia settlers, 
and created heart-burnings and jealousies, which were for a time 
prejudicial to -1,, interests of both. H*d no such causes of 
discord existed, their common origin, their connexion with a 
common country, and .1- privations and dangers common to 
b o t h settlements, surrounded as they were by the savages, would 

tt haveproduced union and harmony in their efforts. Ihc 

danger8 of either would have been the dangers of both; and the 
J& would probably hav, been, the formation of a confederacy 
M distinguished in colonial history as that of «*, unrted cola. 
„;,., of L England." (9) The idea of union and harmonious 

most bably eve. afterwards have clung together m every rno- 

at of difficulty or oppression. V,, although they were ad- 

ofthe same internal enemy, having the same navxgable outlet, and 
inpoeri raising the same staple commodities, their history is 
Jied b, none of those unions of power, and communications 

of a ., M;m( . ( . i which are so conspicuous in the transactions of 
th( , N,u |-„.r|a,»«l colonics. It exhibits nothing but the friendly 
md commercial intercourse, common to adjoining provinces » 
. .,.,„. „, peace. The primary causes of this may be traced to 
;,„. dissatisfaction which the grant excited; and in the progress 

page 10. 

. This confede, iq was formed Id 1643, and originally embraced the 

, plymouth) Connecticut and Ne* Haven 

"^product! happie^tresulU, by preserving bamonyamonprt 

ft. colonies, a bating their energies for defence against ftewflj 

m they wen : led. ^ « rc^^ of the system of 

uon adopW by ft. colonies d B fte : ~**T« **j£ 

fuuoftoter«ttoftee^owofour^onaJ 

^ .,,„., ,„ atlargein.MH—1-sS,:,,.: Papers, lto6,and 

.offtemi. given la Ut Pitkin'. U. States, 50, and 1st Marshall's 

Life of Washington, 137. 



200 HISTORY FROM THE COLONIZATION [Hist. View. 

of a few years, the growth and permanent establishment of the 
two colonies, and the differences in their governments, institu- 
tions, and manners, removed most of the inducements which 
were calculated to inculcate the idea of such an union. 

The dissatisfaction of the Virginians did not spring entirely 

from the loss of territory to their colony. They had amongst 

them an agitator, bold, energetic, and clamorous 

don Increased of his private griefs, in which not only the colony, 

and the tranquil- . . 

ity of the pro- but even the government of Virginia, in some 

vince first inter- . . .„,„. — , 

rupted.by the in- measure participated. William Clayborne, whose 

trigues of Clay- , , , 

borne. name is identified with the rebellion of 1645-46, 

and with almost every act of hostility to the province of Mary- 
land, during the first twenty-five years of its settlement, has 
already been introduced to the notice of the reader, as the 
founder of the settlements on Kent Island, which existed anterior 
to the charter of Maryland. The character and temper of that 
individual, the circumstances under which his settlement was 
made, and the causes of his deep-rooted hostility to the province, 
have been unfolded. Deprived of his settlement, expelled the 
province, and attainted, he sought refuge in Virginia, and threw 
himself upon the protection of Harvey, its tyrannical governor; 
who was believed to have connived at, if not assisted his acts of 
violence in Maryland. There he was followed by commission- 
ers deputed by the governor of Maryland to demand his surren- 
der ; but Harvey, too critically situated to afford him open 
countenance, yet declined compliance with the demand, and 
transmitted him and his case to England, for the adjudication of 
the English privy council. There arrived, Clayborne again as- 
sumed the attitude of a complainant, and prayed the restoration 
of his settlements, and the grant of a new and more extensive 
territory within the limits of Maryland. The results of his peti- 
tion have been detailed. He was unsuccessful in his attack upon 
the claims of Lord Baltimore; and now that force, fraud, and 
complaint, had all failed in effecting his purposes, there remained 
to him but the spirit of deadly animosity towards the colony, 
waiting only the opportunity of revenge. (10) The circumstances 

(10) For the origin of Clayborne's settlements, and the results of his va- 
rious efforts to regain them, sec supra, pages 6th to 8th, and 14th to 18th. 



Chap. II.] TO THE PROTESTANT REVOLUTION. 2Q1 

of the times soon presented that opportunity. The ferments of 
the parent country were rapidly approaching their acme; and the 
spirit (it* insubordination and anarchy, which they brought in their 
train, soon extended itself to the colonies. Royal and parlia- 
ment parties were already forming in them, to react in reference 
to their colonial governments, the scenes of the revolution which 
v. as going on in England. Clayborne espoused the parliament 
cause, for which he was well fitted, both by his natural temper, 
and his deep sense of his unredressed wrongs. 

His first efforts, however, were made under the cover of Indian 
grievances. The intercourse between the colonists and the 
Tlli , Imlian war Indians had hitheito been of the most friendly na 
of 1643. ture . y et tm3 en g ross i n g effects of the settlement 

upon the possessions of the latter, were inevitable. They 
found their own consequence in the land diminishing; and the 
general liberty to purchase their possessions, enabled the colo- 
nists to obtain them often for petty compensations, which the 
natives were prompted to accept, by the wants or temptation of 
the moment. These purchases were gradually driving them from 
the graves and hunting grounds of their forefathers; and come as 
this might, the Indian spirit could not but grieve over it. Clay- 
borne found it a ready minister to his vengeance. He succeeded 
in persuading the Indians, that the colonists of Maryland were not 
Englishmen, nor the brethren of Virginians, whose power they 
either respected or reared; but Spaniards and enemies, who 
would soon drive them from the land; and at length, in the be- 
ginning of the year 1642, their indignation, fanned by his per- 
ions, broke out into open war, which endured for some time, 
and appears to have produced considerable expense and distress 
to the province. (1 ]) 

Pi ircely been restored, when Clayborne came in 

person, as the leader of rebellion in the colony. The distrac- 
tions of tin- times, consequent upon the movements 

rna and 
i rebellion, of the people againsi the crown in the mother 

lit ] 'j i i. 

Country, provided him til agents and associates. Of 
these, the most prominent was Richard [ngle, whose name has 

(11) British Empire iu America, vol. 1st. 323; Chalmers, 21G; and Actof 
1642, chap. 54. 

26 



Of>2 HISTORY FROM THE COLONIZATION [Hist. View. 

ever since been associated with that of Clayborne, in giving a 
name to the rebellion which they excited. One of the results of 
Clayborne and Ingle's rebellion, as it is called, was the destruc- 
tion or loss of the greater part of the records of the province ; 
and those which remain to us, neither show us in what manner 
this rebellion was fomented and accomplished its triumph, nor 
give us any insight into the conduct and administration of the 
confederates, whilst they held the rule of the province. From 
Clayborne's known character as an adherent to the parliament, 
and the fact of Ingle's previous flight from the province as a 
proclaimed traitor to the king, it seems probable that the insur- 
rection was carried on under the name, and for the support of 
the parliament cause. The records of that day inform us only, 
that it commenced in the year 1644 : that early in the year 1645 
the rebels were triumphant, and succeeded in driving the gover- 
nor, Leonard Calvert, from the province to Virginia : and that the 
government of the proprietary was not restored until August, 
1646. If the representations made by that government, after 
its restoration, be correct, the administration of these confede- 
rates, during their ascendancy, was one of misrule, rapacity, and 
general distress to the province ; and this seems quite probable, 
from the fact of their early expulsion from it, notwithstanding 
the triumphs of the parliament party in England. Their domi- 
nion is now remembered, only because it is identified with the 
loss of the greater part of the records of the province before 
that period. (12) 

Tranquillity was restored by a general amnesty, from which 
only Clayborne, Ingle and Durnford were excepted ; (13) and 
for some years after the restoration, the colony was wholly occu- 

Thecourseoftiie pied in re-establishing the affairs of the province, 

government and . . 

colony of Mary- and rescuing it from the distresses which had been 

land, with refer- TT 

ence to the con- occasioned by the rebellion. Unlike many ol the 

stcrnation of the 

mother country, other colonies, its course towards the contending 
parties in England, was one of neutrality. Mlts transactions before 
the execution of Charles I. are silent as to the revolutionary 

(12) Preface to Bacon's edition of the Laws of Maryland, 2d Burke's Vir- 
ginia, 112; Chalmers, 217; Assembly Proceedings from 1636 to '57, from page 
341 to 353. 

(13) Council Proceedings from 1636 to 1657, 168 to 184. 



Chap. II.] TO THE PROTESTANT REVOLUTION. 203 

proceedings in the mother country. The course of the colo- 
nists was at once prudent, and justified by their own condi- 
tion. Their government was removed from the oppressions of 
the crown, which had excited the discontents in England; and 
the proprietary administration of it was full of gentleness and 
benevolence. The recitals of the acts of Assembly of that 
period, overflow with expressions of gratitude to the proprie- 
tary, for his kindness to the colony; and their enactments con- 
tain more substantial evidence of that gratitude, in the volun- 
tary grants of revenue. If they had even been predisposed 
to revolutionary movements, the short yet baneful experience 
which they had of them in the results of Clayborne and Ingle's 
rebellion, and the contrast between their administration and that 
of the proprietary, were sedatives sufficient to allay the spirit. 
They had no motives for entering into a revolution excited by 
oppressions they had never felt, which, in its excesses, might 
ultimately prostrate even their cherished government and institu- 
tions, as a part of the old order of things. At the same time, 
now that the ascendancy of the parliament had become complete, 
an open adhesion to the cause of the crown would only have 
brought down destruction upon their government, and jeopardy 
to their liberties. 

The course of neutrality was therefore to them the course of 

discretion; and it appears to have been invariably observed 

during the reign of Charles I. Immediately after 

IVnnrturc from ,.,,,. ^ n , i . j 

it in one in- his death, this course was lor a moment departed 
from by a single act of loyalty, which the proprie- 
tary hail reason to regret for many years. On the 15th of No- 
vember, L649, the accession of king Charles II. was formally 
proclaimed in the province, by a proclamation issued by Greene, 
who was the acting L r o\emor, under a commission from governor 
Stone, then temporarily absent. 11 Stone soon returned and 
resumed the government; and this most unwise and aimless act 
on the part of Greene, was not followed by any measures calcu- 
lated to give offence to the dominanl party in England: yet the 
memory of the act remained. 

(14) See tlil-, proclamation in Council Proceedings, from L636 to l< ; "'~, 

Sagc.'i.'l. 



204 HISTORY FROM THE COLONIZATION [Hist. Vie*. 

As soon as the triumph of the Commonwealth cause was con- 
summated by the death of the king, the parliament directed its 
Proceedings of attention to the subjugation of the colonies which 
Lnd Cou'iIcirCr had been disaffected to that cause. Amongst 
d t ucrion )r o t f Vife these, Virginia had been conspicuous for her loy- 
in g to ie t)ie a royai alty, and was selected as one of the first victims. 
In October, 1650, an ordinance was passed by the 
parliament, prohibiting trade specially with Virginia, Barbadoes, 
Bermudas, and Antigua, and declaring them to be in a state 
of rebellion. The parliament asserted its right of jurisdiction 
over them, as colonies established "at the cost and under the 
authority of the nation, and settled by its people:" and for 
their reduction, it authorised the council of state to despatch 
commissioners with a fleet, to compel the obedience of all who 
stood in opposition to the authority of parliament. (15) Mary- 
land was not mentioned in the ordinance, and does not appear to 
have been within the contemplation of the powers conferred by 
it. She had never arrayed herself in direct opposition to the 
parliament authority, and had committed no act of rebellion to 
place her in the predicament described. But the finger of her 
"evil genius" is visible in the commission issued under this ordi- 
nance by the council of state. That commission was issued in 
September, 1651, to captain Robert Dennis, Richard Bennet, 
Thomas Stagg, and captain William Claybome: and the instruc- 
tions which accompanied it, authorised them, upon their arrival 
with the fleet at Virginia, to use their best endeavors " to re- 
duce all the plantations within the Chesapeake bay to their due 
obedience to the parliament of the commonwealth of England." 
Ample authorities accompanied this general instruction, to render 
it effectual. They were empowered to offer pardon to all volun- 
tarily submitting, and to use force to reduce the unwilling : and 
they were even authorised to give freedom to the servants of re- 
bellious masters, upon condition of entering as soldiers into the 
service of the commonwealth. Upon the reduction of the colo- 
nies, they were directed to administer to the inhabitants an oath 
of allegiance to the commonwealth, and to cause all process to 

(15) First Hazard's Collection, 556 ; 2d, Anderson's History of Com- 
merce, 54G ; Chalmers, 221. 



Chap. II.] TO THE PROTESTANT REVOLUTION. 205 

be issued in the name of the Keepers of the Liberties of England, 
by the authority of parliament. (16) 

Virginia was finally reduced by them in March, 1651; (17) and 

their attention was now directed to the government of Maryland. 

Like poor Tray of the fable, she was to suffer for her 

Submission of ... . . „, , 

the proprietary proximity to Virginia. Clayborne, who had now 
government to ..... 

the parliament the power, wanted no excuse to justify its exercise. 

cumiiiisiiouers. - . . , 

He and the other commissioners assumed the 
ground, that whatever had been the conduct of the colonies, 
an express submission and recognition by them of the authority 
of parliament, was necessary to shelter them from the powers 
of the parliament commission : and this was accordingly re- 
quired of Stone, who was still the governor of Maryland. Stone 
did not at once accede to their demands ; and they immediately 
issued a proclamation, divesting him of his government, de- 
claring void all the commissions of the proprietary, and consti- 
tuting a board of six commissioners, for the government of the 
province, under the authority of parliament. (18) Before any 
acts of force were resorted to, to compel obedience to this pro- 
clamation, Stone, finding all further opposition useless, effected 
an arrangement with the commissioners, under which he and 
three of his council were permitted to retain and exercise their 
powers, saving to them their oath of fealty to the proprietary, 
Until the pleasure of the commonwealth government, as to the 
ultimate disposition of the province, should be known. This 
arrangement answered the purposes of both. (19) By his reser- 
vation of the proprietary rights, the governor relieved himself 
from the responsibility of a voluntary surrender; and the commis- 
sioners escaped from the hazard of an unauthorised or at least 
doubtful exercise of power. 

So stood the government until July, 1654. In the interme- 
diate perioil, it appears to have been administered by Stone with 

(16) See their commission and instructions in 1st Hazard's State Papers 
556. 

(17) 2d BurkeS Virginia, 81. 

(18) See this proclamation of 29th March, 1652, in Council Proceedings 
from 1G36 to 1657, 26, 28 and 89. 

(HI) Council Proceedings, 1 036 to 1657, 269 and 270. The submission of StOM 
and the arrangement between him ;md the parliament commissioners, under 
which he was permitted to retain his power as governor, took place in June, 
1652. 



20f> HISTORY FROM THE COLONIZATION [Hist. View. 

Usurpation of the fidelity to the commonwealth, and to have kept pace 

government by 

these conunis- vrith all the revolutions in the home administration. 

sioners, in the . , 

name and under It was indeed alleged against hnn, that in 1653 he 
the authority of 

the protector. had attempted to reintroduce the proprietary govern- 
ment, by requiring the inhabitants to take the oath of allegiance to 
it. (20) If this be true, it was not incompatible with the arrange- 
ment under which he was permitted to retain his power. That ar- 
rangement manifestly contemplated the reservation of the proprie- 
tary dominion, until the will of the English government was known: 
and by the latter, no act had yet been done to divest it. Crom- 
well had even less reason than the parliament, to be dissatisfied 
with Stone's administration ; for the latter, as soon as he received 
certain intelligence of Cromwell's elevation to the protectorate, 
voluntarily recognised and proclaimed him as protector. ("21) 
Neither the records of the province, nor the allegations of his ene- 
mies, furnish any evidence of a falling off from the allegiance 
which he had thus professed. But Clayborne was still there, the 
dominant spirit in the direction of the colonies: and to him the 
vision of the proprietary government, sustained by the approba- 
tion of the protector and the people, was as that to Hainan of 
Mordecai the Jew sitting at the king's gate. To overthrow it, 
the usual expedients of power were resorted to. The charge of 
defection could not be sustained by acts; and it was therefore 
only necessary to allege unexecuted and unmanifested inten- 
tions, always easy to be charged, and difficult to disprove. 
Alleging these, they claimed the privilege of resettling the gov- 
ernment of Maryland ; and Stone, being without the means or 
hope of effectual resistance, at once surrendered his powers with- 
out a struggle. His submission and proffer to administer the 
government, in the name and under the authority of the com- 
monwealth, were all unavailing. He was utterly divested of it; 
and its administration was confided to a board consisting of ten 
commissioners, deriving their appointment from Clayborne and 
his associates. (22) 

(20) See Hazard's Collection, 626. 

(21) This proclamation of Cromwell, as protector, of 6th May, 1654, ia 
recorded in Council Proceedings, from 1636 to 1657, 303. t| 

(22) The commissioners thus appointed were, captain William Fuller, 
Richard Preston, William Durand, Edward Lloyd, captain John Smith, Mr. 



Chup. II.] TO THE PROTESTANT REVOLUTION. 207 

Stone now resolved upon resistance; but the inclination came 
too late. He succeeded in raising a force of about two hundred 
Fniticss efforts of mcn ' ani * actua l hostilities'were commenced. The 
contest was unequal. The commissioners wore 
backed by all the powers of Virginia Which was now 
completely under their control; and by all the strength, which the 
general ascendancy of the commonwealth power was calculated 
to impart. An engagement soon took place near the Patuxent, 
in which Stone was utterly defeated and taken prisoner. He was 
doomed to death ; but such was the respect and affection en- 
tertained for him even by the opposing forces, that the very sol- 
diers, who were detailed to carry the sentence of death into exe- 
cution, refused to perform the service. This, and the general 
intercession of the people, procured a commutation of the sen- 
tence into imprisonment, which was continued with circumstances 
of severity, during the greater part of the protectorate adminis- 
tration. (-23) The province being now in the undisputed pos- 
session of the commissioners, an Assembly was convened, by 
which their authority was fully recognized. In the course of the 
next year, the protector, when informed of the proceedings of the 
commissioners, gave his sanction to their acts, and to the gov- 
ernment which they had established. 

The dominion of the proprietary seemed now to be at an end; 

and in the moment of its downfall, the stale claims of Virginia 

to his territorv, were aijain revived and urrred upon 

ReTival of the . . . 

i claims the protector, with every circumstance of objection 

in opposition to J 

the restitution of to the charter. On the other hand, the proprietary 

Chi; proprietary. . . , 

was as urgent in his requests for the restoration of 
hi< province ; and to counteract these, the cause of the Virginia 
claim-, was espoused and advocated with ureal earnestness by 
Bennel and Matthew, two of the commissioners then adminis- 
tering the affaire of thai colony. In opposition to the restitution, 
several documents were transmitted by them to the protector, 

Lawson, John Hatch, Ki< hard Wells, and Richard E\v<n ; of whom Fuller, 

i id Dnrand, to be the quorum Bee their commission in Council 

iOGto 309, and Land Records, Liber I, 618 to 631. 

. 1st Hazard's State I 56. Preface to Bacon's ciliti.»n of 

the Laws. 



208 HISTORY FROM THE COLONIZATION [Hist. View. 

which embodied every possible objection to the rights of the pro- 
prietary, and are as conspicuous for their ingenuity as their ma- 
lignity. In these, the very origin of the charter was assailed, 
under the allegation that it was obtained by the false representa- 
tion that the territory granted was uncultivated, and inhabited only 
by savages; and the story of Clayborne's wrongs was portrayed 
in the most vivid colors. The proclamation of Charles II. 
the course of Stone before his final submission, and his sub- 
sequent efforts to retain the government by force, were detail- 
ed with every coloring calculated 6 to impress the truth of their 
generalfallegation, "That the proprietary, if restored, would be 
as ready to oppose his highness the protector, as he ever had 
been to slight and oppose the authority of parliament, which he 
hath manifestly and boldly done, and that with a high hand." 
The supposed fanaticism of the protector was approached, with 
the insidious objection to the religious toleration, which had ever 
existed under the proprietary government, and was incorporated 
with its laws and institutions. But all of these objections were 
feeble, when compared with the political reasons advanced by 
them to inculcate the necessity of union. They are worthy of 
preservation for the policy which they urge. " The peace and 
common good of these plantations (say they) require, that they 
should be united and kept under one government, whereby 
dissensions, quarrels, and cutting of throats, likely continually to 
arise between such near plantations, will be prevented: his 
highness's authority established; trade encouraged; the exces- 
sive planting of tobacco restrained, so as to make way for the 
more staple commodities, such as silk, &,c. the running away of 
criminals and debtors checked; and the whole strength against 
the common enemy, the Indian or any other enemy, the more 
readily conjoined upon all occasions." (24) 

Cromwell's fanaticism was always the dress of the occasion; 
and it wa3 laid aside, whenever it interfered with his enlarged 

(24) See their letter and the several documents transmitted with it, con- 
taining these objections, in 1st Hazard's Collection, 620 to 630. In the re- 
ference given to these papers above, page 14, it is erroneously printed as a 
reference to the 2d vol. 



Chap. II.] TO THE PROTESTANT REVOLUTION. -2(19 

Course of the pro- \ic\VS of public policy. Urged by Baltimore's pre- 
lector with refer- r . 

encetoibeoecon- tensions on tbe one Bide, and the \ Lrginia claims 

Hiding claims to 

the province. on the other, he had, as early as January, 1655, in 
his letter sanctioning the assumption of the government, special- 
ly enjoined it upon the commissioners of Maryland, to preserve 
peace and prevent all differences between the plantations of Ma- 
ryland and Virginia in relation to these claims ; and to leave them 
u holly to the determination of the council at home. (-25) The sub- 
ject of these conflicting claims had previously been referred by him 
to the lord commissioners. Whitlocke andWiddrington; and their 
report was referred to the committee on trade and plantations. 
By this committee, a report was made on the lGth September, 
1656, which appears to have sustained the claims of Lord Balti- 
more ; and it was in reference to and in opposition to this 
report, that the above mentioned objections were preferred 
by Bennet and Matthew. (-20) Either from this opposition, or 
from the policy of the protector, in retaining the proprietary to 
his interests, by keeping his rights in a state of dependance, 
this report of the committee of trade was kept open for future 
determination. (27) 

Yet the proprietary seems to have expected a speedy decision 

in his favor; and in the event of delay, to have resolved to regain 

. , his province by force. The condition of affairs 

Condition of the r J 

province favora- there, offered hopes of success. Even in the face 

ble to the propn- ' r 

etary claim. f t j ie protectorate dominion, there was at all times 
a laro-e party in Maryland, attached to his government, and de- 
voted to his person and interests. His government had never 
been characterized by oppression. It had fallen without a crime, 
before the ambition of leaders, not bound to the inhabitants oi 
the province, either by the ties of interest or affection. The 
revival ami support of the Virginia claims by the pivunineiil 
ammiL r -t the commissioners, was calculated to arouse the pride 
and indignation of persons of all parties. Even after the snp- 

(2.">) lit Hazard, 594. 

Council Proceedings, Liber II II 10 and 11; lit Hazard, G20. 
(27) Council Proceedings, H H 10 and 11, which recite tin- proceedings of 

the protector, and refer to this report of the committee of trade. 

27 



•210 HISTORY FROM THE COLONIZATION [Hist. View. 

pression of Stone's rebellion, there were many persons in the 
province, who openly adhered to the interests of the proprietary, 
and advocated the restitution of his government. 

Amongst these was conspicuous Josias Fendall, who was des- 
tined to play a prominent part in the affairs of the colony; 
although entirely unknown in them, before the esta- 

Rise and charac- .... , m, 

ter of Josias Fen- blisliment of the protectorate government. Ihe 

dalt. .... 

transactions of the province exhibit him to us for 
the first time in October, 1655, when he was brought in custody 
before the provincial court, charged with having disturbed the 
government under pretence of a power from the late governor 
Stone; and was then, by his own consent, remanded to prison, 
to remain there until the protector should finally determine as 
to the government of the colony. (28) In the next notice of 
him, we find a record of an oath purporting to have been taken 
by him, by which he engaged, that he would neither directly nor 
indirectly disturb the existing government until the protector's 
determination ; (29) and the very next occasion exhibits him as an 
open insurgent against it, acting under a commission from the 
proprietary, as governor of the province. At this day, the char- 
acter of this individual can be collected only from the acts with 
which he is identified; and these mark him as "fit for treasons, 
stratagem and spoils." His treachery is conspicuous in almost 
every transaction with which he is connected. The province 
was surrendered to him by Cromwell's commissioners, under a 
treaty, which contained an express stipulation for the security of 
the acts and orders passed during the defection ; and the very 
first act of his administration was not merely to declare them 
void, but also to direct, "that they be razed and torn from the 
records." In return for the distinction conferred upon him by 
the proprietary, by selecting him as governor at a period when 
he appears to have had but little note in the colony, he selected 
the earliest opportunity after the restoration, for the treacherous 
surrender of his rights. Yet all his acts prove him at once bold 
and intriguing, and as such, well fitted to conduct a revolution. 

(28) Land Records, Liber 3, 158 and 159. 

(29) Council Proceedings, 1636 to 1657, 314 and 315. 



Chap. II.] TO THE PROTESTANT REVOLUTION. 211 

Fendall received his commission, as governor, from the pro- 
prietary, in July, 1056; (30) and armed with this, he soon suc- 
„ . ,, cecded in exciting a rebellion against the commis- 

Fendall eommis- ° ° 

nor'i'l \iir n m aioners. Tlie records do not inform us, in what man- 
protfncl ^ftfify ner lie P rocureu * ms release from the imprisonment, 
in"' 'm '"ulu-cii,' to which he was subject in 1655 by his own con- 
lti5d " sent; but from the record of his oath of adhesion 

shortly afterwards, there is every reason to believe that he was 
then discharged. From that period until the restoration of the 
proprietary government in 1658, the existing records do not 
furnish us the means of tracing his opciations in opposition to 
the protectorate government. We learn from them only, that 
lie succeeded in exciting a rebellion, which was attended with 
considerable distress and expense to the province; (31) and that 
he was never finally subjugated by the commissioners. In the 
latter part of the year 1657 and the beginning of 1658, there 

i- to have been a kind of divided empire in the province; 
the commissioners holding the courts and administering the go- 
vernment at St. Leonard's; and Fendall and his council sitting and 
acting aa -i<h at the city of St. Mary's. Through the inter- 
ference of a common friend, and to put a stop to the distresses 
arising from this state of things, an arrangement was entered into 
in England, in November, 1057, between Lord Baltimore, and 
Bennet ;ini] Matthews (the same commissioners who had been 
BO vindictive in their opposition to his rights;) under which it 

agreed that the province should be surrendered to the former, 
upon certain conditions, for the indemnity of those who had 

1 in opposition to him. This being communicated by the 
proprietary to Fendall, he immediately addressed letters to Ful- 
ler. Preston, and others of (he protectorate commissioners, 
inviting an interview at St. Leonard's in the March following, 
for the purpose of carrying this agreement into effect, and 
perfecting the treaty of surrender. The interview according" 
lv took ]>l;i<e at St. Leonards, on the 20th of March, 1658, 

(30) His commission dated 10th July, 1656, is recorded in Council Tro- 

-, Liber 1 1 1 1. 7. 
I :;i i or linance Bth of ibe Arts and orders of September, 1C.">7, and Coun- 
cil Proce< dings, IJ II, 10 and 1 1. 



21-2 HISTORY FROM THE COLONIZATION [Hist. View. 

(new style) when this was accomplished, and the province 
formally surrendered to Fendall as the proprietary's governor. 
(32) 

Feudal! being now in full possession of the government, he 
was prepared to react the part which Cromwell had played in the 
ins intrigues for administration of England. Under the sanction and 
{^proprietary direction of Parliament, Cromwell had accomplished 
complete success for the commonwealth cause : and 
then he turned the parliament out of doors. Fendall, in the 
name and under the authority of the proprietary, was now the 
undisputed rider of the province; and his next move was to kick 
away the ladder by which he had climbed to power. At the 
Assembly convened in February, 1659, the lower house, as emu- 
lous as Fendall of revolutionary examples, in a message trans- 
mitted to it by the upper, claimed for itself to be the Assembly 
and highest court of judicature in the province, without depen- 
dance on any other power; and demanded the opinion of the 
upper house upon this claim. This was a pretension, which 
struck at the very existence of the upper house, and of the most 
essential powers of the proprietary; and although upon the face 
of the proceedings themselves, it appears to be one originating 
merely in the ambition of the lower house, and made in invitum 
as to Fendall and his council, the memorials of that day give a 
very different character to the transaction. It is represented, on 
all hands, to have been a scheme concocted by Fendall, and 
promoted by his adherents in the house, only to give a color to 
his designs; and his course as to the demand, fully sustains these 
representations, and illustrates his policy. In their reply to this 
message, the upper house desired to know whether the lower 
house, in making this pretension, considered themselves an 
Assembly without the governor and upper house, and as such, 
independent of the proprietary. The house now asked a con- 
ference, which was granted; and the designs of Fendall were at 
length unmasked. He at first affected some little reluctance ; but 
he, and Gerrard andUtye, two of his council, soon came into the 
measures of the lower house. Many of the members of the 

(32) Council Proceedings, II H, 10 and 11. The terms of the treaty of 
surrender have already been described. Supra page 15, note (17.) 



Chap. II.] TO THE PROTESTANT REVOLUTION. 213 

upper house still proving refractory, the lower house, headed by 
its speaker, repaired in a body to the upper, and announced 
their determination not to permit its members to sit longer as an 
upper house; but at the same time accorded them the privilege 
of taking seats in the lower house. The lower house agreeing, 
that the governor should be its president) with the reservation 
of the right to adjourn or dissolve itself, the upper house was then 
dissolved by Fendall. Carrying out his intentions, he now surren- 
dered to the lower house his commission from the proprietary, 
and accepted from them a new commission for himself and his 
council ; and to give stability to the new order of things, an act 
was passed declaring it felony to disturb the government as estab- 
lished by them, and a proclamation was issued by Fendall, com- 
manding the inhabitants to recognize no authority, but that which 
came immediately from his majesty, or the grand Assembly of 
the province. (33) 

The rule of this commonwealth party of the province was of 
short duration. The proprietary adopted speedy and efficient 
Proprietary pow- measures for the restoration of his government. He 

ur reestablished , _ _. _ . 

by p.nfrn.ir i'iii- procured Irom King Charles, who was just restored 
lip Oalvert, la 

.November, 1660. to the throne of England, a general letter of instruc- 
tion, enjoining all the officers and inhabitants of the province to 
assist him in the re-establishment of his jurisdiction; and a simi- 
lar command of assistance addressed to the government of Vir- 
ginia. He also commissioned as governor, his brother Philip Cal- 
\ ert, to whom he gave authority to proceed against the insurgents, 
cither in the courts, or by martial law, at his pleasure; and in- 
structed him on no account to permit Fendall to escape with his 
life. The government of Virginia came cheerfully into the com- 
mands of the king, and proffered Calvert all necessary assistance. 
He however experienced no difficulty in assuming the govern- 
ment, which was abandoned by fendall after a fruitless effort to 

ev ite the people to opposition. (34) The first acl of Calvert, after 
the assumption of the government, was to proclaim King Charles 
II.; (36) for although, at the revolutionary Assembly of l<>"> ( .>, 

(33) Journals of Assembly from 1659 to 98, 51b to 7th page. Preface to 
Bacon'! Edition t" the Lawi of Maryland. 

(34) Council Proceedings from 1656 to 1668, Liber HH, 74 to 8-'. 

(35) Council Proceedings, II II, 7C. 



r:i i HISTORY FROM THE COLONIZATION [Hist. View. 

Fendall and his adherents had professed all due submission to 
the authority of the restored monarch, their inclinations were 
otherwise. No public act had been done to announce his resto- 
ration ; and one of the earliest acts of Fendall and his council 
had been, to proclaim Richard Cromwell as protector, as soon as 
the intelligence of his father's death was received. In confor- 
mity to the proprietary's instructions, governor Calvert proclaim- 
ed a general indemnity to all, except Fendall and Hatch, for 
whose apprehension proclamations were immediately issued. In 
a few days, Fendall came in voluntarily, and submitted himself 
to the discretion of the government ; and notwithstanding his 
gross treachery, and the express injunctions of the proprietary 
not to permit him to escape with his life, he was only imprisoned 
for a short period; and was discharged from all the penalties of 
the sentence passed upon him by the provincial court, except 
the deprivation of the privileges of voting and holding office. 
He lived to repay this humanity many years afterwards, by at- 
tempts to excite another rebellion in the province. (36) 

The proprietary government was now firmly re-established, 
and the province restored to tranquillity, which it enjoyed with- 
out interruption for many years afterwards. In the 

Administration * J J 

of the £overn- besrinnino- of the year 1662, the proprietary sent out 

inent from ltilil) o a J > 1 I J 

unui 1576. j the province, as its governor, his son and heir 

apparent, Charles Calvert, who continued to reside in the province 
and administer its government until the death of his father, ex- 
cept during one or two occasional absences of short duration. 
The transactions of the government during this period, in estab- 
lishing its boundaries, and in establishing or remodelling its in- 
stitutions, belong to the history of the grant or of the provincial 
institutions ; and have been, or will hereafter be, considered in 
connexion with the particular subjects to which they refer. Be- 
sides these, this interval presents no events which are important 
in the elucidation of the political history of the province. 

Cecilius Lord Baltimore, the first proprietary of Maryland, died 
on the 30th of November, 1075 ; and was succeeded in his ti- 

(36) The various proceedings relative to Fendall may be seen in Council 
Proceedings, 1656 to 1668, Liber H H, pages 74, 76, 79 to 82 and 89. 



Chap. II.] TO THE PIJOTESTANT REVOLUTION. -215 

ties and estate in the province, by his son ami lieir 

Accession of 

caaries Calvert, Charles Calvert, the then governor of Maryland 

as proprietary. ._ . , J 

\- soon as be was notified 01 his accession, the 

new proprietary, intending to return to England, immediately 
convened an Assembly. \t this Assembly, the legislation of the 
provinces was rescued from the confusion and obscurity which 
had characterised it for some years, from the want of a re- 
gular expression of the projprietary will upon the acts from 
time to time passed, and from the enactment, during that period, 
of various acts upon the same subject, and tending to the same 
purpose. A general revision of the laws then took place, under 
which, those then in existence and proper to be continued, were 
definitely ascertained. (37) 

The government of the province Mas then put in commission, 
to be administered by a deputy governor, in the name of the pro- 
prietary's infant son, Cecil Calvert, as nominal governor; and 
He departs (or the P™P r 'e tar y departed for England. There ar- 
PrKta^ovS rived ' he found himself and his government the 
Ltago^Cen? Mqact of complaint to the crown. The detail of 
^i'l'ryianu"" in these complaints is not necessary for our purpose. 
Representations had been made by some of the re- 
sident clergy in the province, to the heads of the established 
church in England, which drew a most hideous picture of the 
immoralities of the colony, and were preferred by the bishop 
of London to the committee of trade and plantation.-, as exhibit- 
ing grievances requiring redress. (38) The remedy proposed 

(37) This was accomplished by the acts of 1G7G, chap. 1st and 2d. 

(38) The principal representation upon which the complaint was predica- 
ted, is contained in a letter written from Patuxent, in Maryland, by the 
Rev. Mr. Veo, to the archbishop of Canterbury, iii May, 1 676*. " The province 
of Maryland, (says he,) is in a deplorable condition fir want of an established 

counth s, and in them al least 20,000 bouIb: 
and but three Protestant ministers of the church of England. The priests 
arc provided for, and the Quakt) speakers; but 

no care i 3 taken to build up churches in the Protestant religion. Tin Lord's 
day is profaned. Religion i- despised, and all notorious vice9 are committed: 
so that it i- Sodom i>r ancleanness, and a | . « - — i house <>f iniquity'. • / 

the Lord Baltimore is lately gone fori l ham m<i'I< hnhi to adSress tftii 

to your Grace, to beg thai I • l be /•/« an <l to solicit him for some Utah- 

Hiked support for a Protestant rmntriry." Chalmers, 37. r >. Now here i- a m< si 



21G HISTORY FROM THE COLONIZATION [Hist. View. 

indicated the cause of complaint. The clergy wanted an estab- 
lishment and endowment of lands ; and their piety was shocked 
at the temporal emoluments in the possession of the Catholic 
priests of the province. The answer of the proprietary was 
easily made. He referred to the permanent law of the province, 
tolerating all christians, and establishing none ; and to the gene- 
ral impracticability of procuring, through the Assembly, the ex- 
clusive establishment of any particular church ; and he was releas- 
ed from the subject by the injunction, to enforce the laws against 
immorality, and to endeavor to procure a maintenance for the 
support of a competent number of the clergy of the church of Eng- 
land. (39) The complaint of the Virginians, that Maryland had not 
aided in the protection of her frontiers, was reported to be utterly 
groundless ; and thus triumphant over his enemies, in February, 
1680, (new style,) the proprietary returned to the province, and 
resumed the personal administration of its government. The at- 
tempts of Fendall and Coode, in the following year, to excite se- 
dition in the colony, were attended with no consequences at that 
period, which deserve special consideration. They met with no 
correspondent spirit on the part of the people, and were instantly 
checked by the arrest and conviction of these notorious agita- 
tors. They derive their consequence, from their connexion with 
the events which led to the Protestant revolution, and with the 
character of one of these personages, who was destined to be the 
leader of that revolution: and will hereafter be adverted to, in 
illustration of its causes and objects. 

The proprietary remained in the province until 1684, ad- 
ministering its government with a parental care for the rights 
and interests of his people, which secured for him general 
respect and affection. The events now occurring in the mother 
country, were already ripening the jealousies of the people of 

frightful picture of the immorality of the province : and the whole grievance is 
the icant of an established clergy ; and the remedj/, its establishment. How unlike 
his divine Master, who did not wait for an established support to go forth on 
his mission of grace. "Having a care for the 6orfi/," is too often ail that is 
meant by " having the care of souls." 
(39) Chalmers's Annals, 365. 



Chap. If.] TO THE PROTESTANT REVOLUTION. 217 

ElKEST* England for their liberties and their religion. The 
teSJyjSK CT y of " no Popery" was already abroad lo ex. 
ry ^ ""rcrso^ citc app rcnens i° n 5 and vague surmise and suspi- 
hi'J 1 C admintetra! c ^ on as to ^ 1C u ' ter ' or designs of the crown, were 
Uon - infusing themselves into the public mind. The acts 

of the government, and the succession to the throne in prospect, 
were well calculated to sustain and increase these, and to pre- 
pare the public energies for the crisis which was rapidly ap- 
proaching. Extending to and diffusing themselves amongst the 
colonies, (which were always tremblingly alive to the movements 
at home,) by their travel, these jealousies lost none of their pow- 
er to alarm and influence, and found ready recipients in the 
breasts of the colonists, yet smarting under the recent restrictions 
of their trade, and ever apprehensive of the destruction of their 
chartered liberties. In Maryland, subject as she was to the do- 
minion of a Catholic, yet peopled principally by Protestants, 
they were calculated to produce peculiar effect. Yet in the 
midst of all this, the personal government of the proprietary, not- 
withstanding the occasional differences between him and the As- 
sembly, was always alluded to in the Assembly transactions of 
that period, in terms dictated by the most grateful affection: and 
his departure excited the general regrets of his people. 

That departure appears to have been occasioned by the jeo- 
pardy, in which his proprietary rights were now placed by the 
Danger to bit go- tem P pr of the crown. We have already adverted 
ibTta^naSSS t0 the jealousy and aversion, with which it generally 
of ihe crown. regarded the independence of the charter and pro- 
prietary governments, and the exemption of their rights and reve- 
nues from its discretionary control. These governments, for the 
most part, originated in the personal attachment of the king to the 
original grantees, or were granted to subserve some temporary hu- 
mor, or to conciliate, from motives of policy, some temporary dis- 
content. Springing thus from the favoritism or impulse of the mo- 
ment, after the temporarj causes v. hich gave them existence subsi- 
ded, the control which the ftes and securities of these charters im- 
posed u pon the «r<>\\ ii, was alike thai of sullen wedlock, when the 
golden link of affection has become the chain that fitters. In 
those days, the king enjoyed facilities for release from his obliga- 
tions, even beyond those of the modern victim of marriage. If 
88 



218 HISTORY FROM THE COLONIZATION [Hist. View. 

other causes were wanting, his pliant courts could find a sanc- 
tion for divorce from the charter restrictions, in the knowledge of 
his will. The writ of quo warranto, once issued, never failed to 
accomplish its purposes. It was as true as the Indian's arrow; 
and the colony, which saw it impending, never contemplated its 
defeaf, except by sturdy reliance upon itself, or by propitiating 
the favor of the monarch. 

The proprietary knew this full well ; and it now required all 
his vigilance to avert its application to his own rights. He 
The jealousies ^ oes n °t appear to have enjoyed any peculiar favor, 
I with king Charles II. or his successor. Too 
Eaion S l °im- little of the libertine and sensualist for the former, 
of P the ctf- an( l y et to ° hberal and tolerant in his religious prin- 
ciples for the latter, he rested for his protection 
solely, upon the chartered sanctity of his rights, and the pleading 
virtues of his wise and liberal administration of them. To both 
of these monarchs, such claims were "as dust in the balance," 
when weighed against their own selfish views, or the suggestions 
of their capricious tyranny. Complaints were continually poured 
into the ear of king Charles, relative to the Catholic partialities 
of the proprietary administration. The sources from which they 
came, entitled them to but little respect ; and if they were even 
worthy of it, the refutation of the charge was triumphant. The 
proprietary referred to the cherished laws and institutions of the 
colony, coeval with its existence, which permitted the freest exer- 
cise of their religion to every christian sect. He transmitted to the 
mother government full lists of the officers of the province, from 
which it was manifest, that its offices were distributed without re- 
ference to religious distinctions; and that in fact the military power 
of the colony was almost exclusively in the hands of the Protest- 
ants. (40) In reply to this, the exemplary Charles, whose whole 
reign was at Avar with every thing that gives efficacy and purity to 
ion, gave his commentary upon religious liberty, by ordering 
the proprietary " to put all the offices into the hands of the Pro- 
testants." Yctno one ever suspected Charles, of peculiar attach- 
ment to the Protestant or any other religion ; and the secret of 

(40) Sec Chalmers 3G9, and the reference given in Note 27, to the papers 
in the Plantation oiiicc, which, as he says, fully sustain the truth of this re- 
mark. 



Chap. II.] TO THE PROTESTANT REVOLUTION. 219 

his injunction lay deeper. The system of restrictions upon the 
colonial trade, the full establishment of which is identified with 
his feign, was his most favorite policy; and the opposition 
which it encountered in the colonies, only endeared il the more 
to him. \\'e have, elsewhere, described the character ami ob- 
jects of that system, and the reception with which it met in Ma- 
ryland. The proprietary's course, notwithstanding the provoca- 
tions he received from the king's officers, did not directly deny, 
as did that of some of the other colonial governments, the valid- 
ity of the system ; although his charter had infinitely stronger 
claims to entire exemption, than any other. He opposed what he 
considered its abuses ; and in so doing, he called down upon him- 
self from the crown, its severest reproaches. In one of Charles's 
letters to him, after charging upon him acts of obstruction, which 
prevented the collection of the tobacco duty imposed by the 
statute 25th, Charles II. chap. 7th, to the amount, of £'2500 
sterling, he gave the proprietary a gentle caution, the alarm- 
ing force of which could not be misunderstood. "Although, 
says he, your proceedings, in obstruction of our officers and 
in contempt of our laws, are of such a nature, as that we 
might justly direct a writ of quo warranto to be issued out ; 
we have, nevertheless, out of our great clemency, thought fit, 
for the present, only to require the commissioners of our cus- 
toms, to charge you with the payment of the said sum, and to 
cause a demand to be made from you lor the same." (II) 

Such symptoms of dissatisfaction, aggravated as they were 
by the representations from time to time transmitted to the king 
Rrturn of the '*)' ms officers in the province, required the pro] 
J^nglancHifMay" tary's attention to his interests at home; and thi 
fore puttin eminent in commission in P 

tl " ;rc ' 1664, to he administered in the name of his infant 

son, Benedict, Leonard Calvert, as the governor, he departed for 
England. He was destined never to return to the province. He 
arrived onlj to witness t!f .i of king James I.' 

encounter yet more serious designs upon his rights. P 
the same religion with the new monarch, ami n 
claiming the knowledge of his elevation with joyfuh had 

(41) See this letter in Coalmen 377, note 30, chap. 1$, dated L2th An 
1682. 



220 HISTORY FROM THE COLONIZATION [Hist. View. 

reason to expect some degree of royal favor. Yet although 
members of the same church, James's religion and his were of 
very different casts. His principles, as manifested in his provin- 
cial administration, were full of benignity and toleration — Those 
of the monarch, exhibited only that cold, selfish and contracted 
bigotry, which mistakes its own malignity, restlessness under 
control, and vindictiveness towards all opposition, for the energies 
of religion; and they carried with them, a spirit yet more averse 
to the political liberties of his people. 

The general designs of this king against the liberties of the 
English people, and his peculiar opposition to the charter liber- 
The charter of iies of the colonial governments, have been portray- 
2d a fr y omdestra£ ei1 b Y other and abler writers : and it will suffice to 
testant 'revolu" sav tnat Maryland came in for her full share of them. 
t10 " - James's connexion with the grant to Penn, and 

his inclinations against the charter of Maryland thereby occasion- 
ed, (which have already been described,) were calculated to give 
fresh incentives to the general design, in the particular instance. 
It seems also, that he was further instigated to his attack upon 
the charter of Maryland, by the representations of a Jesuit, call- 
ed Father Peters, the causes of whose hostility have not been de- 
veloped. (42) The design of destroying it was soon formed: and 
no appeals or representations of the proprietary could avert it. 
In April, 16S7, the quo warranto against it was issued: (43) but be- 
fore the judgment on it was obtained, the monarch was himself 
overthrow of brought to judgment by the people : and the proprie- 
Goveram«Dt ta iM tar >' rights only escaped from the arbitrary power of a 
1689 - Catholic king, to be prostrated by the efforts of a 

Protestant Association within the province. The origin and re- 
sults of that association form the subject of the next chapter. 

The character and results of the proprietary government, dur- 
ing this aera, were such as to reflect imperishable lustre upon the 
character of names of Cecilius and Charles Calvert. It is not 
Charles Culvert* l ' ie msire > which glares around the achievements 
of their ' Admiu- of ambition or the triumphs of war, and which, like 
istrauons. tne fj re f tne funeral pile, hideis the victims by 

(42) British Empire in America, Vol. 1st. 331. 

(43) Chalmers, 371. 



Chap. II.] TO THE PROTESTANT REVOLUTION. 221 

which it is fed. It is the mild and steady radiance, which beams 
upon a people's interests from the liberal and gentle administra- 
tion of them, not to burn, but to quicken and ripen into happi- 
ness and prosperity. Their memory wants no monument, but 
the full and faithful history of their administration, and a contrast 
of it, with the " lights and temper of the times'' in which they 
lived, and witli the specimens of colonial administration around 
them. The character of Cecilius, the founder of Maryland, has 
come down to us, identified in his acts and in the language of 
historians, with "religious liberty and respect for the rights of 
the people." "Never (says Dr. Ramsay) did a people enjoy 
more happiness, than the people of Maryland under Cecilius the 
father of the province:" and on his tombstone (says the more accu- 
rate Chalmers,) ought to be engraven, " That while fanaticism 
deluged the empire, he refused his assent to the repeal of a law, 
which, in the true spirit of Christianity, gave liberty of con- 
science to all." His son and successor had grown up in the 
government of the province, before he became its proprietary : 
and thus familiarised to the wants and interests of the colony, he 
had the sagacity to perceive, and the liberality to pursue, the 
policy which these recommended. The language and transac- 
tions of the Assembly of the province, throughout that period, 
abound with attestations to the excellence of their administra- 
tion. (44) The voluntary grants of permanent revenue under the 

(44) Although we are so far removed from this age, the facts which illus- 
trate the character of the founders of our State, cannot be uninteresting 
We shall therefore be pardoned for giving a few extracts from the Assem- 
bly transactions, in illustration of the general remark of the text. In the 
recital to the act of 1G40, the Assembly say, " they were thankful to Almighty 
God for the benefits they had received, since their colony was first brough t 
here, and'planted at hia lordship's great charge and expense, and continued 
by his care and industry, and tiny desire that this may be preserved 
for ever arnon^t their rucords as a memorial to all posterity of their 
thankfulness and fidelity." Again, in the act of 1671, chap. 11, granting 
the tobacco duty, they say, " the upper and lower house of Assembly, reflect- 
ing, with all imaginable gratitude, upon the great care and favor expressed 
by his lordship to the people of the province in the unwearied eare which 
hU lordship bad shewn, and the vast charge and expense he was put (..from 
the time of their &rst seating unto this Instant, to preserve them in the enjoy- 
ment of their lives, liberties, and the increase and improvement of their 
Btl Bias and fortunes, therefore, kc." At the session of 1674, this duty wa* 



222 HISTORY FROM THE COLONIZATION [Hist. View. 

tonnage and tobacco fluty acts, and the frequent occasional 
gifts by the Assembly, were avowedly made in acknowledgment 
of it. Nor were these ads and professions, those of a servile 
and submissive people. The freemen of Maryland, as they were 
called, were emphatically so from their origin. They never per- 
mitted the proprietary to entrench upon what they conceived to 
be their rights: and the records of this period furnish many in- 
stances, in which they opposed and defeated the designs of the 
proprietaries. Their testimony, in the midst of these occasion- 
al differences, to the purity of the proprietary motives, and to 
their general regard for the interests of the colony, is therefore 
of the strongest character. Whenever by the temporary excite- 
ments, which have been described, the proprietary government 
was for a time suspended, we find the inhabitants of the pro- 
vince looking back to it, as the children of Israel to the flesh- 
pots of Egypt, and returning generally with joy. A brief view 
of the progress of the colony, will exhibit results correspondent 
to the character we ascribe. 

The colony of two hundred persons, planted in the year 1634, was 

enlarged, as early as the year 1660, into a population of twelve 

thousand, and was continually on the increase 

Population of , . . ., , -^ 

tbe colony dur- from the latter period until the Jrrotestant revo- 

iug this aera. . . , ._ x T ./.,.- ■ i ■, ■ i . • . 

lution. (4o) In 1605, it had increased to sixteen 

continued to the proprietary's son and heir, Charles Calvert, during his life, 
t» express terms, as an act of gratitude. At the session of 1676, immediately 
after the accession of the latter to the proprietaryship, the lower house 
(to use their own language) " considering that he had lived long in the pro- 
vince, and had done the people many signal favors, as a token of their love, 
duty and respects, unanimously desire his acceptance of all the public to- 
bacco then unappropriated." At the session of 1682, the Assembly, " to de- 
monstrate its gratitude, duty, and ailection to the proprietary, prayed his ac- 
ceptance of 100,000 lbs. of tobacco to be levied that year," for which the 
proprietary returned his thanks, but replied, that considering the. great charge of 
the province, he did not think fit to accept thereof. And even at the session of 
1688, on the eve of the Protestant revolution, the Assembly say, " That there 
is nothing more certain, than that his lordship and his noble ancestors, had, 
with the hazard of their lives, buried a vast estate in the first subduement and 
continued settlement of the province, to a far greater value than the profits 
of the province did at that time or were likely to amount to." Can lan- 
guage be stronger, or evidences more abundant ? 

(45) Chalmers, 226. Ramsay's United States, vol. I., 146. 



Chap. II.] TO THE PROTESTANT REVOLUTION. 223 

thousand persons; and in 1771 to nearly 20,000.(46) After 
the latter period and before the Protestant re\ olution, we have no 
accurate estimate of its population: but at that revolution, judg- 
ing from the ratio of increase furnished by the prior estimates, it 
must have exceeded twenty thousand* TJke settlements, commenc- 
ing at Si. Maryland on Kent Island, had extended themselves all 
along the bay on each side of it, from the southern to the north- 
ern limits iW the province, and for a considerable distance up the 
Potomac; ;is will be apparent from the erection of the counties, 
existing at the clOse of this aera. On the Western Shore, Charles, 
St. Mary's, Calvert, Anne Arundel, and Baltimore counties; and 
en the Eastern Shore, Somerset, Dorchester, Talbot, Kent, and 
Cecil counties, were now in existence. The population was 
seated along the bay and around the mouths of its tributaries, in 
detached settlements : and if we except the city of St. Mary's, 
there does not appear to have been another settlement in the 
province entitled to the name of a town, unless we adopt a mod- 
ern definition of the constituents of a town, which requires in 
houses, the same Dumber that is necessary in persons to consti- 
tute a riot. The city of St. Mary's numbered fifty or sixty 
houses, in the course of two or three years after the planting of 
the colony: and very little exceeded this number at any after 
period of its existence. (-17) The causes of this scarcity of towns, 
notwithstanding the considerable population of the province at 
the close of this era, are obvious in the character and pursuits 
of the colonists. They were all planters : " and the greater plan- 
id-, (saya Anderson, in speaking of this colony,) have generally 
Storehouses within themselves for all kind of necessaries brought 
from England, not only for their own consumption, but likewise 
for supplying the lesser planters and their servants. And whilst 
thai kind of economy continues, there can be no prospect of 
towns becoming considerable in the province." I 18) "The people 

(40) Tli rom the" British Empire in America," 
vol. 1,330. Mr. Chalmers, in note 1, to chap. 15, page 375, has errone- 
ously given this < rk, as of the population in L678. The 
estimate in 1671 - History, as quoted in that note by 
Mr. Chalmi 

British Empire in \> Fol. ] 3 

(48) \M Anderson's Couum 



224 HISTORY FROM THE COLONIZATION [Hist. View. 

here, (says another, writing from Maryland about the year 1695 or 
1696,) have not yet found the way of associating themselves in 
towns and corporations, by reason of the fewness of handicrafts- 
men." (49) In 1682, an attempt was made, by the act of 1682, ch. 
5, which was followed up by the supplementary acts of 1684, ch. 
2d, 1686, chap. 2d. and 1688, chap. 6th, to establish a variety of 
towns and ports for the convenience of trade: but these acts de- 
feated their own purposes, by the number which they attempt- 
ed to establish. The only towns which are alluded to in these 
acts and described as such, are the city of St. Mary's and In- 
dian town in St. Mary's county, the town at Proctor's in Anne 
Arundel, Calvert town on Battle creek and Harvey town in 
Calvert, and Cecil town at the mouth of Bohemia in Cecil. The 
other sites, selected for the towns established by these acts, are 
described as town land, landing places, points, &x. and they 
are, nearly all, at this moment what they were then described to 
be, and no more. 

The colonists, during this period, were almost universally 
growers of tobacco. Besides this, they scarcely produced any 
Occupations and thing for exportation ; and it was the very currency 

trade of the co- . 

lony. of the province. There were but few merchants 

or tradesmen amongst them; and manufactures were scarcely 
known, the province relying for these entirely upon the mother 
country. Some attempts were made to encourage manufactures, 
such as the making of linen, woolen cloths, leather, and shoes, 
and to promote the growing of hemp, by the acts of 1681, chap. 
6th, and 1682, chapters 5th and 6th ; but they did not result in 
any material change in the pursuits of the colonists. They de- 
voted themselves to the cultivation of tobacco, and continued to 
import from England, upon the avails of the tobacco exported, 
almost all the necessaries of life. To use the language of an 
early writer, in describing the condition of Maryland, at a period 
very little removed from that of which we are now treating : 
"Every plantation is a little town of itself, and can subsist itself 
with provisions and necessaries; every considerable planter's 
warehouse being like a shop, where he supplies not only himself 

(49) British Empire in America, vol. I, 333. 



Chap. II.] TO THE PROTESTANT REVOLUTION. 005 

with what he wants, but also the inferior planters, servants and 
labourers, and has commodities to barter for tobacco or other 
goods, there being little money in this province, and little occa- 
sion of any, as long as tobacco answers all the uses of gold and 
silver in trade." (50) 

Notwithstanding the facilities which they derived from this 
tobacco currency, as a substitute for money, the inhabitants 
siate of their experienced considerable inconvenience from l he 
curreney. W ant of a money currency: to obviate which, an 

act was passed, as early as 1661, viz. the act of 1661, chap. 4th, 
for the establishment of a mint within the province for the coin- 
ing of shillings, corresponding in purity to the English sterling 
money, and being equal in weight to ninepence of that money. 
The passage of this act was an exercise of pCwer beyond the pa- 
latinate privileges; and assumed a right, which is generally con- 
sidered as incident to sovereignty alone; and as such, it was ob- 
jected to, at the time of its passage, by some of the members of 
the upper house. Yet it received the assent of the proprietary, 
and was confirmed amongst the perpetual laws in 1676. It 
would seem, from the enactments of the following act of 1662, 
chap. 8th, that the mint was actually established, and money 
coined in it: for that act speaks of the coin as struck, and 
provides for the issuing of it, by requiring every householder 
to come in and take ten shillings of it for every taxable in bis 
family, to be paid for by him in tobacco. Yet it certainly was 
not kept up for a long period, nor to any considerable extent ; for 
the same scarcity was complained of in [686, and another act 
was then passed to relieve the grievance complained of, which 
is entitled, "an act for the advancement of coins." This act is 
worthy of consideration as establishing the provincial currency 
in lieu of the sterling. (51.) 

(50) British Empire in America, vol. I. 340. 

(51) Act of 1CHG, chap. 4th. Under this act, Nrw England shillings and 
sixpences were to be received ai tterUng at their denominated value; French 
dollars, pieces of eight and rix dollars, at *i.v shillings, ami otht r coin ■ of silver and 
gold, except base coin, at three pence advance on ever] shilling sterling. 
These coins were a legal tender at this advanced value, in :>ll payments i" 
be made in rnon. aa to the proprietary's rent- and lino. Offii 
fees and ordinary charges, which were rated in tobacco, were payable in tbifl 

29 



22G HISTORY FROM THE COLONIZATION [Hist. View. 

It appears, that there was sprinting press, and a. public printer, 
in the province during this era. Mr. Chalmers, who had ex- 
Pubiic press in amined the declaration of the Protestant Associa- 

the province dur- . -.n^n , • , , , , 

ing this era. tors in 16S9, which has been preserved amongst 
the records of the plantation office, informs us that it was printed 
at St. Mary's, by the public printer of the province. The exist- 
ence of a public press, at this early period, appears to have been 
peculiar to the colony of Maryland ; and it may be relied upon 
as another striking indication of the civil and religious liberty 
enjoyed by the colonists. The press is the natural associate of 
liberty. 

The degree of religious liberty enjoyed in the province, dur- 
ing this period, may be collected from the preceding remarks. 
Religious liberty The course of the government has already been de- 

in the province 

during this era. scribed as " one which tolerated all christian church- 
es and established none." This system of toleration was coeval 
with the colony itself; and sprang from the liberal and sagacious 
views of the first proprietary. The oath of office, prescribed by 
him to his governors in the province, from 1636 until the enact- 
ment of the act of 1649, is in itself a text book of official duty. 
The obligation of the governor under it was, " that he would 
not, by himself or another, directly or indirectly, trouble, molest, 
or discountenance, any person professing to believe in Jesus 
Christ, for or in respect of religion ; that he would make no dif- 
ference of persons, in conferring offices, favors, or rewards, for 
or in respect of religion, but merely as they should be found 
faithful and well deserving, and endued with moral virtues and 
abilities; that his aim should be public unity, and that if any per- 
son or officer should molest any person, professing to believe in 
Jesus Christ, on account of his religion, he would protect the 
person molested, and punish the offender." These his cherish- 
ed principles of religious liberty were at length engrafted by law 

coin, at its advanced value, at the rate of six shillings for every 100 lbs. of 
tobacco. The export of the coins so advanced, was punished by the forfeiture 
of the value of the coin so exported. Such provisions to bring the coin into 
the province and to keep it there as its currency, shew that they had derived 
little if any benefit from their proposed mint. " The lord proprietary, (says 
the author of the British Empire in Arc/erica,) had a mint here, but it never was 
viadeuse o/ - ." Vol. I, 344. 



Chap. II.] TO THE PROTESTANT REVOLUTION. 227 

upon (he government of the province, in the year 1019. (52) 
The act which gave them legal sanction is one of the proudest 
memorials of our colonial history. Its preamhle contains an ar- 
gument in lav or of the rights of conscience, which should never 
be forgotten by human governments. " Whereas, (says it,) the 
enforcing of the conscience, in matters of religion, hath frequently 
fallen out to be of dangerous consequence, in those common- 
wealths whore it hath been practised ; and for the more quiet and 
peaceable government of the province, and the better to preserve 
mutual love and unity amongst the inhabitants," &c. The act 
then declares that no person, professing to believe in Jesus Christ, 
shall be in anywise molested or discountenanced, in respect of 
his religion, nor in the free exercise thereof, nor in any way com- 
pelled to the belief or exercise of any other religion. The ope- 
ration of this act was, for a short time, suspended by the ascen- 
dancy of Cromwell's commissioners, during whose government an 
ordinance was passed prohibiting the profession and exercise of 
tin- Roman Catholic religion : (53) but upon the restoration of the 
proprietary government, it was revived in all its vigor, and con- 
tinued tu exist, .'iiid be respected, until the occurrence of the Pro- 
testant revolution. It must, however, be acknowledged, that 
the course pursued towards the Quakers, at one period of this 
government, was not in accordance with these principles. But 
the principal instances of their persecution occurred during an 
administration, for the acts of which, the proprietary is not pro- 
pcrlv responsible; and at a period, when the peculiar tenets and 
practices of that sect, were misunderstood for disaffection to the 
government. They arose immediately after the surrender of the 
government to Fendall, and were the promptings of his own ar- 
bitrary -|>irit. Upon the coming in of the new government, it 
w.i- deemed proper to require all persons to come forward, and 
take and subscribe an engagement of fidelity to if, which was 
declined by the Quakers, who alleged in objection, that they 
were to be governed b\ God's laws and thr- ligh( within them; 
and not by man's laws. To such men as Fendall and some of 
hi- council, Bcruples of conscience were unintelligible, and tin 

(52) A. i ol 1649, eh 

'. . Ordinance itii, of the acts and orders ■•! tii< \ embl; ol LI 



228 HISTORY FROM THE COLONIZATION [Hist. View. 

gentle and peaceful doctrines of this sect were, by them, con- 
strued into a seditious refusal to submit to the government, for 
which a decree of banishment went forth against its followers. 
(54) The proprietary's instructions test his principles, and to 
these we would look in vain for any thing to give a color to re- 
ligious persecution of any description. Nor can one or two oc- 
casional departures of the government, in moments of excite- 
ment and danger, from the principles of religious toleration, be 
fairly put in opposition to an administration of half a century, 
characterised by nothing but benevolence to all the followers of 
Christ. Conspicuous above every other colony of that period, 
for its uniform* regard of religious liberty, it had its reward. 
Harmony, peace and prosperity, were the general results ; and 
this period in the history of Maryland, may be truly styled, "the 
golden age of its colonial existence." 

(54) Council proceedings of 1658, Liber H H, 29; 



CHAPTER III. 



HISTORY OF THE ROYAL GOVERNMENT OF MARYLAND. 

The Protestant revolution in the province of Maryland, was an 
event in its colonial history, as extensive in its consequences, as 
The Protestnnt it was singular and unexpected in its origin. From 

revnliitionin Ma- . . „ . . . . XT . inches *m 

ryiand. the session of Assembly, in JNovember, lobe, until 

the complete assumption and organization of the govern- 
ment of Maryland by the crown, in the beginning of the year 
169*2, there is an entire chasm in our records. At the com- 
mencement of this interval, we find the people of the province 
dwelling under the proprietary government, in apparent security 
and contentment. In the recorded transactions of that period, 
we look in vain for the seeds of a revolution, or the preludes to 
its explosion ; and especially of a revolution avowedly originated 
and conducted for the defence and security of the Protestant 
religion. The proceedings of the lower house of Assembly, 
manifest some discontents in the colony; but these, in their 
causes and extent, were alike those, which characterise many 
other periods in its history, of acknowledged happiness and 
tranquillity. They relate to malpractices by officers, or abuses 
of a public nature from whatever source proceeding, which it 
was the practice of this house of Assembly, at every age of the 
colony, to present for reformation to the consideration of the 
government. Acting as the grand inquest of the province, 
its vigilance was continually exercised, in supervising the ad- 
ministration of the laws, and reporting the abuses of power; and 
its official representations, detailing these to the proprietary or 
his governor, instead of being charges against the government 
itself, often manifested the most entire and cheerful confidence 
in its inclination to redress them. Before the Protestant revolu- 
tion, these representations were usually embodied in what was 



230 HISTORY OF THE ROYAL [Hist. View. 

styled, " a paper of grievances ;" (1) and after the proprietary 
restoration in 1715, they took the form of resolves and addresses. 
The articles of grievances, exhibited by the lower to the upper 
house at the session of 1688, do not ascribe a single act of de- 
liberate oppression or wanton exercise of power, immediately to 
the proprietary or his governors. They do not even insinuate 
the slia-htest danger to the Protestant religion ; or impute to the 
proprietary administration, a single act or intention militating 
against the free enjoyment and exercise of it. They were pre- 
sented under the expectation of redress ; and to crown the 
whole, the reply of the governor and council, in answer to their 
articles, was so entirely satisfactory, that the lower house, in a 
body, presented them their thanks for its favorable character. 
Here the curtain drops, and when it next rises, it presents to our 
view, the proprietary dominion prostrate, the government of the 
colony in the hands of the crown, and administered by men 
hitherto unknown in it; the Assembly pouring forth its congra- 
tulations for the royal protection, and its redemption " from the 
arbitrary will and pleasure of a tyrannical Popish government;" 
the proprietary himself formally impeached to the crown by that 
Assembly ; his officers and agents degraded and harassed in every 
manner; and the Catholic inhabitants, the objects of jealousy, re- 
proach and penalties. 

For the causes and progress of the revolution which accom- 

; plished this transformation, we would search fruitlessly amongst 

Barrenness of our existing records. That revolution was com- 

our Records, in . . 

all that would ii- menced and conducted to complete triumph, by an 

lustrnie the cau> , . . 7 

sesand progress association of individuals ; and after its Consumma- 

of this revolu- . „ > ,. , . ._ 

tion. tion, the province was governed by a Convention 

(1) These papers, as well as many others of that period, amuse us as well 
by their manner of expression as their mutter. One of the messages of the 
lower house to the upper, relative to the paper of grievances exhibited at the 
session of 16G9, exhibits one of the finest specimens of the genuine Bathos, 
which we have yet seen. " We art very sorry, exceeding sorry, (says the mes- 
sage,) that ice arc driven to say, that your answer and objections to the paper en- 
titled " The Public Grievances," arc not satisfactory, or that from the refulgent lus- 
tre of the eradiations of reason, that shine and dart forth from them, the weak and 
dim eye of our understandings is dazzled and struck into obscurity." Even Har- 
grave's eulogy upon Chancellor Yorke could not match this. Ih another 



Chap. III.] GOVERNMENT OF MARYLAND. 031 

until April, 1092; when at the instance of the colony, its govern- 
ment was assumed by the crown, and placed under the adminis- 
tration of a governor, directly appointed by it. The proceed- 
ings of that association and convention, arc wauling to illustrate 
this revolution. The researches of Chalmers, the full and in 
general the faithful annalist, terminate at this period. Although 
his work was written, for the purpose of demonstrating that the 
colonies were subject to the legislation of parliament, it presents 
an example of a party production as rare as it is worthy of imita- 
tion. Whatever obliquity or feebleness there may be in his rea- 
soning, it does not appear to be sustained by the concealment or 
misstatement of facts. So far as our researches have extended, 
and have enabled us to test the accuracy of his work, as a repo- 
sitory of facts, it may be relied on with confidence. (2) In prepar- 
ing it, he had free access to the records of the plantation ollice in 
England; and was there enabled to collect many facts relative 
to the history of the colonies, which are not elsewhere to be 
found. The proprietary government of Maryland was more 
insulated from that of the mother country, than the other colonial 
governments; and is less dependant upon those records, for the 
elucidation of its history. Its internal administration resting 
with the proprietary and the people, the controversies which 
sprang out of that administration, rarely, if ever, rose to such a 
height, as to require or call in the intervention of the crown. 
The control of the English government, limited to its eminent do- 
minion, was exercised only, lor the regulation of the commerce of 
the colony, or in calling forth and directing it.- energies, in time 
of war, against the common enemy. The period of which we 

part of this message they say, " wise and good men's actions being commonly 
of one dye are, tike the links of a chain, ooupled together by the necessary 
consequence of right tea 
(2) Mr. Ch timers, as i have been informed, was a Scotchman, residing in 
itj , u b practitioner of the law, at the commencement of the American 
revolution. Espousing the cause of the crown, he sought refuge in Eng- 
land, and took up I quired notoriety as a 
political writer, and more especially bj bis rest Lhe colonial his- 
tory; and ultima! ed a place in the trade office. Writing under 
such circumstances, and foi pose of demonstrating the suj 
macy of parliament, his general Impartiality in the statement of facts is truly 
remarkable. 



232 HISTORY OF THE ROYAL [Hist. View; 

are now treating, commencing with the revolution of 1689, and 
terminating with the restoration of the proprietary government in 
1715, is an exception to this general remark. During this inter- 
val, the government of the colony was a royal government ; and 
although its introduction affected no material change in the pro- 
vincial institutions, it brought with it the practice of transmitting 
to the plantation office, from time to time, accounts of the go- 
vernment and condition of the colony, from which much assist- 
ance might be derived, even in the accomplishment of the limited 
designs of this work. Destitute of these aids, our general view 
of the government of Maryland, from this period, is collected 
only from the provincial records now existing in our state 
offices. 

In looking back to the events which immediately preceded the 
Protestant revolution, it is difficult to discover, in the public 
condition of the transactions, any indications of misrule or oppres- 

bi r ta l iU9 ta,lt before s ^ on on tne part of the proprietary, calculated to 
that Revolution. ^ xcit g £ So far ag the p rotestant re ligion was 

concerned, the course of the laws, and the administration up 
to the period of the proprietary's departure for England, was 
one of entire neutrality. The great object of both seems to 
have been, to preserve that religious freedom, which had ever 
been identified with the colony. The proprietary is no where 
charged by the Assembly, with any act or intention, aiming ei- 
ther at the establishment of his own church, or the injury of the 
Protestant. No such intentions are imputed by them ; and as 
far as we are able to collect and estimate his conduct, it exhibits 
none such. Judging from this and the representations of the colo- 
nists themselves, his principles and feelings were averse to every 
thing like persecution. Had they been otherwise, his sagacity 
would have taught him the folly and danger, of attempting any 
thing, to the prejudice of the Protestant religion, or the injury of 
his Protestant subjects. An Englishman of that day, in describ- 
ing to the committee of plantations, the condition of Maryland 
in 1681, remarks, " there are there thirty Protestants to one 
Papist, between whom there is no quarrel : but two persons have 
been apprehended for saying, that were the parliament dissolved 
Baltimore should not be quiet in Maryland. (3) This reptesenta- 

(3) Chalmers, Note 24, page 376. 



Chap. Ill] GOVERNMENT OF MARYLAND. 233 

tion not only shews the absence of all jealousies amongst the in- 
habitants, on the score of religion, at that period ; but also the 
vast preponderance of the Protestant power. To have provoked 
its indignation, or even excited its apprehensions, would not 
only have endangered the proprietary dominion from internal 
dissensions; but would have given to the crown, already mutter- 
ing vengeance, and ready to avail itself of any expedient to cast 
from it the charge of Popery, a most plausible pretext for the as- 
sumption of the government. The attempts to excite sedition 
made by Coode, Fendall, and a few others, in 1G81, fell harmless; 
and it may be safely said, that in 1684, at the time of the pro- 
prietary's departure for England, he had the confidence of the 
inhabitants. 

After that period, his relations towards the arbitrary James, 
were not such as to involve him in the odium which justly 
attached to the transactions of that monarch. These transac- 
The Proprietary tions, so far as the colonies were concerned, were 

relations with 

the crown, at characterised by a deliberate design to prostrate the 

the period of its . 

occurrence. independence of all the colonial governments; and 
whatever the watchwords, which the discontented of the moment 
adopted to sustain their resistance to his oppressions, the jeopar- 
dy to their colonial liberties lay at the root of their revolutions. 
Had not these been menaced, the colonies would, probably, have 
looked with unconcern upon the religious alarms which were 
sounded in the mother country. Even there, it was their identi- 
fication with an administration, ever warring against the political 
rights of the nation, which, principally, gave them consequence; 
but this was peculiarly the case in the colonies. The reign of 
Charles II. was characterised to the latter, by oppressive restric- 
tions upon their trade ; and when James ascended the throne, he 
began the system of levelling all that obstructed his will. In- 
stead of being a party to these royal designs, the proprietary was 
always one of their most prominent victims. For his tardy obe- 
dience to the restrictive Bystem, he drew down upon himself the 
seriou- displeasuse of king Charles ; and fur the crime of being a 
proprietary with exalted privileges, his government was devoted 
to destruction by king James. To have lent his aid to either, was 
to destroy himself. 
30 



234 HISTORY OF THE ROYAL [Hist. View. 

If we turn from these considerations to the list of grievances 
presented at the session of 1688, which, it may be fairly presumed, 
would exhibit the feelings and apprehensions of the moment, he 
a^m^mmeSC ls not ^ere charged with any design hostile to their 
occurrence^ " S religion or their liberties. Some abuses are imputed 
by the lower house to the attorney general, the receiver of quit- 
rents, and the secretary of the province : but these weie ascribed 
to them personally; and were expressly disclaimed by the deputy- 
governors and their council, whose promise of redress gave en- 
tire satisfaction to the lower house. It is therefore due to this 
proprietary to say, that whatever might have been the abuses or 
apprehensions which excited the revolution, there is no just 
reason for believing that he was treacherous to the welfare of his 
colony; or forfeited, at that period, his high claims to remembrance, 
founded upon his liberal and beneficent administration for more 
than twenty years, as governor or proprietary. Accidental cir- 
cumstances and the general excitement of the moment, in- 
volved him in a common fate with the arbitrary monarch. 

The dangers to the Protestant religion, which were impending 

in England, justly excited both the indignation and sympathies of 

their Protestant brethren in Maryland. The Catholic inhabitants 

. . . of Maryland, who had grown up in harmony with 

Timid policy of J ... . . 

the deputy go- the Protestants, and were familiarised with religious 
vernors. 

toleration, could not have looked coldly upon the 

acts of the crown, however masked, when their result was to be 
the loss of their own colonial liberties. General discontent towards 
the English government, which kept pace with the feelings that 
pervaded England, was the necessary consequence. At the 
commencement of the session of 1688, it had not yet turned upon 
the proprietary. At the close of that session, a step was taken 
by the proprietary's governors, which indicated distrust of the 
people, and was, for that reason, well calculated to direct the ex- 
citement towards themselves. The proprietary had left his govern- 
ment in commission, to be administered by nine deputy gover- 
nors ; at the head of whom, as president, was Mr. Joseph. If 
we may judge of president Joseph, from some messages of his 
which are yet preserved, he was a man who had neither the 
sagacity nor the temper which were necessary to direct the 
government in safety, through the excitements of the moment: 



Chap. III.] GOVERNMENT OF MARYLAND. 233 

and ( 4) the transactions to which we allude, indicate that his 
associates possessed little more. The members of the lower 
house were summoned to the upper, and required to take the 
oath of fidelity to the proprietary. Indignant at this, the lower 
house resolved that they were the representatives of the freemen 
of the province, and acted in that capacity only with the upper 
house; and that to impose such an oath, either upon their house 
in its collective capacity, or the members of it during its session, 
was a breach of privilege. At the same time, they professed their 
willingness to take the required path, if. my act of Assembly could 
be shown to sanction its requisition. The upper house refused to 
proceed in the transaction of business, until the oath was taken ; 
and the Assembly was prorogued. Immediately after the proro- 
gation, their privilege having ceased, the oath of fidelity was 
again tendered to the members of the lower house, and was then 
taken by them. Quern Deus vult perdere, prins dementat. To 
manifest apprehension always begets danger; and those towards 

(4) He was as great a stickler for the jus divinum of his own powers, as 
king James himself for those of the English crown. His address to the 
Assembly uf 1688, contains as regular a deduction of his "jure diuino" 
title, as if he were preparing to try it in an action of ejectment. It cannot be, 
(says he,) or at least I hope it is not unknown In tin members uf this honoralile 
Assembly, that the unquestionable duly of every one of us, add of us all in general, 
is, that we first render thanks to the Almighty, fir Unit it hath pleased the Divine 
goodness thus to bless us in this, (I hope') so good met happy a rm < ling. Nor ought 
we to be strangers to the end anddulyfor which the divku Providence hath ordered 
us thus to meet. 1 say, Provich net hath ordered us, for that there is no protet 
but of God : unit tin power I'ij which we are assembled hen, is undoubtedly derived 
from God to tin king, ami from tin king to his excellency, the lord proprietary, and 
f romhw said lordship to us, the power therefore whereof I speal Ad. Firstly, 

l and from God; secondly, in tin' king and from th king} thirdly, in his lord- 
ship; fourthly, in us,toth( end and duty of and for which thi now called 

nuil met, and is that from tins, four hauls, In nil : <»/' G( ■ / ; tin king; our lord ; 
and selves. 

Having thus dirided his subject into these four most comprehensive 
themes, he expatiates upon tilings in general, in a Bt) le exceedingly quaint and 
amusing; and savouring every when: of a hypercritical sanctity, which maj 

for that very reason !><■ suspected of being hypocrili* d. How natural il i 
rulers when their powei is tottering from tin: true basis of the will and afli ction 
of the subject, to attempt to prop it by the ,l juri irono." in the history of 

"Ugitimatx," theresorl to thin ha^ always been found a fatal symptom. 



•236 HISTORY OF THE ROYAL [Hist. View. 

whom distrust is seriously exhibited, seldom fail to give cause 
for it, however groundless it may at first be. 

Such was the experience of the deputies, in all their after trans- 
actions. Every act of defence, was represented as one of con- 
templated aggression. Every ordinary exercise of their powers, 
Results of that was tortured into arbitrary and mischievous preroga- 
poiicy. t j ve< j n J anu ary, 1689, they received the intelli- 

gence of the expected invasion of England, by the Dutch, 
under the command of William of Orange. The mighty events 
which were to flow from this enterprise, and even the ultimate 
purposes intended by it, were yet hidden in the womb of time ; 
and the deputies, without appearing to have had any designs 
against the Protestants of the province, or any fixed views as to 
their course amidst the distractions of England, began to prepare 
the province for defence. The public arms were ordered to be 
collected; and some measures were adopted to check the pro- 
gress of rumors calculated to create disaffection towards the pro- 
prietary government. It was the very course to give rumor 
wings, and she now spread them over the whole colony; diffusing 
amongst the people, the cry of a popish plot for the destruction of 
the Protestants, conceived and promoted by the deputies, and 
to be accomplished by the assistance of the savages. Circum- 
stances soon occurred, to render this imputation of a popish plot, 
at least as plausible as that of Oates ; which, in a period of less 
excitement, had shaken all England to its centre. A treaty, 
which had existed for some time with certain tribes of Indians in 
the province, was now renewed. The proprietary had received 
command to proclaim William and Mary, which it appears he 
readily obeyed ; but his instructions to his deputies, did not reach 
them in due season ; and hence, whilst the cause of the revolu- 
tion was completely dominant in England, and the new sovereigns 
were acknowledged in the surrounding colonies, the deputies 
waiting the proprietary's will, had not yet formally proclaimed their 
adhesion. (5) Had the proprietary been personally present in the 
province, his energy and sagacity, added to the general respect for 
his character, would easily have surmounted the difficulties of the 
crisis. His timid deputies lost him his government, by shrinking in 

(5) Chalmers, 373. 



Chap. III.] GOVERNMENT OF MARYLAND. 237 

a moment of emergency above the ordinary restrictions of law, 
from the exercise of powers not nominated in their commission. 

In April, 1689, an association was formed, styling itself, "An 
association in arms for the defence of the Protestant religion, and 
Ori 2 iii and tri- f or asserting the right of king William and queen 
Protestant' asso" M ar !i to ^ ie province of Man/land, and all the Eng- 
cl;iUo "- lish dominions." (6) The deputies were driven to 

the garrison at Mattapany ; and at length, by the surrender of 
that garrison on the first of August, 1089, the associators were 
in undisputed possession of the province. (7) Of the character 
and motives of most of the prominent individuals in the respec- 
tive parties to this struggle, the records of the times do not in- 
form us. The names of some of the leaders are preserved in the 
articles for the surrender of Mattapany ; which are signed, on 
behalf of the associators, by John Coode, Henry Jowles, John 
Campbell, Kenelm Cheseldine, Ninian Beale, Humphrey War- 
ring, Nehemiah Blackiston, John Turlinge, and Richard Clouds; 
and, on behalf of the deputies, by William Joseph, Henry Darn- 
all, Nicholas Sewall, Edward Pye, and Clement Hill. (8) 

John Coode, who was the leader of the whole association and 
whose name is identified with the revolution which it accom- 

(6) Chalmers, page 373. 

(7 ) This garrison was located at a place, now culled Mattapany ScwaWs, 
which is situate on the south side of Patuxent river, about two miles above 
its mouth. The proprietary, at this period, had a fort there, and a favorite 
residence, from which many of his orders and proclamations were dated, dur- 
ing his residence in the province. 1 have been informed that there are now 
no remains of either. 

(8) The articles for the surrender of Mattapany, are the only relics of those 
times, which our records have preserved. Some dispute arose about the 
terms of the treaty, as late as 1694, when these articles were brought before 
the council, and recorded ai proceedings, at the instance of the late 
president Joseph ; aft. i thej had been submitted to the inspection of Jowles, 
Coode, and other leaders of the association, and pronounced authentic — 
they stipulated for the surrender of the garrison, and of all munitions of war 
within it ; and for fa ipists, from all offices, civil and 
military, within the province: and submitting to these, the persons in garri- 
son were given a safe conduct to their homes, and assured the protection 
of their persons and property. Th. y are recorded \u Council Proceedings, 
from 1694 to 169*. liber 11 J), pari 2d, G3. 



238 HISTORY OF THE ROYAL [Hist. View, 

character and plished, is known to us by subsequent occurrences. 

motives of John . 

Coode, its leader, which shed little lustre on himself or any event with 
which he was prominently connected. It would not be fair to 
infer, from the illustrations of his motives in this revolution, 
which his subsequent conduct afforded, that the other parties 
to it, were also actuated by similar designs, so far removed from 
a genuine regard for the public interests and the preservation of 
religion. In times of revolution, men will rise to power, in whose 
mouths the alleged causes of revolution are but the watchwords 
to denote a party, or the calls to lure it on; and whose hearts 
have never joined the service of the lip. But, as naturally as 
the muddy particles which float upon it denote the perturbed 
stream, does the elevation of such men indicate the over ex- 
citement of the moment, and diminish the force of its allega- 
tions against those, at whom the revolution is aimed. Coode 
was an avowed revolutionist in the cause of religion; and in the 
course of a few years afterwards, under the very Protestant do- 
minion which he himself had so largely contributed to establish, 
he was tried for and convicted of the grossest blasphemies against 
the christian religion, he being at the same time a minister in 
holy orders. Revolting against the proprietary, (whose clem- 
ency had before pardoned him for revolt,) in order to the es- 
tablishment of the Protestant government: that government was 
scarcely established in the province, before he was engaged in 
sedition against it. (9) 

(9) Coode, although confessedly the leader of the association, appears to 
have fared worse in the end, than the most of the chiefs. Kcnclm Clieseldine 
and Colonel Jowles appear to have ranked next. Clieseldine was the speaker 
of the Protestant convention, assembled immediately after the close of the 
revolution ; and also of the Assembly of May, 1G92, the first which was con- 
vened under the royal government. He received a gift of 100,000 lbs. of to- 
bacco for his services, and was soon afterwards appointed commissary general, 
from which office he was dismissed in August, 1697, for carelessness and negli- 
gence in office — " CI. Proceedings, H D, part 2d, 539. Jowles also received a 
gift of 20,000 lbs. of tobacco for his services in raising troops at the begin- 
ning of the revolution. Coode was, in a great measure, overlooked, or at least 
his rewards bore no proportion to his high rank amongst the associators. 
When we next hear of him, he was in holy orders : and at the same time 
lieutenant colonel of the militia of St. Mary's county, and receiver of the du- 
ties in Potomac river, asserting that religion was a trick, reviling the apo»- 



Chap. Ill,] GOVERNMENT OF MARYLAND. 239 

The representations made by that association, at that period, 
against the proprietary administration, might therefore be receiv- 
Pmcpedinjrs of e(1 u ' i,il some sr m I ),( ' s ofcallowance, from the mere 
Sfttr Vh,' n uvo" knowledge of the excitements pf the moment. But, if 

throw ot" the , , • . ., ■ .- ■ , 

proprietary go- we look into their own justification, transmitted to 
king William at the time, we shall find still stronger 
reasons for distrusting statements, which would induce the be- 
lief, that Charles Calvert, whose name was so long identified 

ties, denying the divinity of the christian religion, and alleging that all the 
morals worth having were contained in Cicero's offices. lie had been elected 
to the Assembly about that period, when the doctrine of Home Tooke's case, 
" that oner a priest, always a priest," was applied to him, and he was declared 
ineligible ; and as he could not lose the character, he does not seem to have 
been veky apprehensive of soiling it. His blasphemous expressions were re- 
ported to the governor and council ; and he was dismissed from all employ- 
ments under the government, and presented by the grand jury of St. Mary's 
county, for atheism and blasphemy. The proofs are recorded at large in Liber 
H D, p. 2, 393 to 397. To escape the presentment, he fled to Virginia. — 
Governor Nicholson, whose morals did not particularly qualify him for a 
castigitor of other persons irregularities, applied to the governor of Virginia 
to assist in his apprehension. There, although the governor of Virginia issued 
proclamations and made many ostensible efforts for his apprehension, he con- 
trived to remain in security, and even ventured back to St. Mary's, in dis- 
guise, to vent the threat amongst some of his friends, " that as he had pulled 
down one government, he would pull down another." He contrived to keep 
Nicholson at bay, throughout the whole of his administration, notwithstand- 
ing the unceasing efforts of the latter for his apprehension ; and his security 
in Virginia, notwithstanding the proclamation of its governor, provoked the 
striking rebuke from Nicholson to that governor. " Your excellency's procla- 
motion seems lo mc, to be like one of the icatch-hoxises on the Barbary shore, to give 
notice when the Christians are coming to take them, that they may Jly to it for 
safety.' 1 '' Nicholson being removed to the government of Virginia, Coode 
came in and surrendered himself in May, 1C99, and was taken into cus- 
tody. Being convicted, governor Blackiston, at the instance of the judges of 
the provincial court, and in consideration of the services rendered by him at 
the revolution, suspended his sentence for six months, in hopes of his re- 
formation, of 1 1 1 i — measure the council approved, and advised the governor 
to pardon him, if he should conduct himself proper!] during that period. 
Age, or affliction, or both, seem to have mended his manners and tamed his 
insurrectionary spirit; fur from this period, In is seen no more- in the affairs 

of the province. Sic transit gloria mundi. Council /'<< ling of 1696, 

Liber H I), part 2d, 393 to 397, 433 to 425, 160. Council Proceedings of 
1698 and 1699. Liber X, 51 to 57, 101, 189, and 220 to 



240 HISTORY OF THE ROYAL [Hist. View. 

with the prosperity and happiness of the colony, and who had 
so long enjoyed the respect and affection of his Protestant sub- 
jects, had, from the mere bigotry of religion, become the op- 
pressor of his people, and the persecutor of the Protestant faith. 
The associators, in reducing the deputies by force, had taken the 
leap from which there was no return. If the proprietary pow- 
ers were restored, they could not hope to enjoy any great de- 
gree of the proprietary confidence. They had now the power 
in their own hands; and, added to the original reasons for assum- 
ing it, were the natural unwillingness to resign power exceeding 
even the desire to obtain it, and the probable diminution of their 
individual influence and consequence, if the old order of things 
were restored. They, therefore, immediately called a conven- 
tion, which was summoned by a warrant, issued in the name of 
" the several commanders, officers and gentlemen associated in arms 
for the defence of the Protestant religion, fyc" and was held at 
St. Mary's on the 23d August, 1689; and they transmitted to the 
king an expose of their motives and object, in the revolution 
which they had effected. It was charged to the full, with accu- 
sation and invective against the proprietary ; and was admirably 
adapted for the purposes at which it aimed. It addressed Wil- 
liam, upon the very topics which applied to his own title. Its 
specifications present to us many charges of malpractices and 
oppressions, which are heard of only here ; and are not even in- 
sinuated in the list of grievances exhibited by the lower house of 
Assembly but a few months before ; when, had they existed in 
the extent ascribed, we cannot but believe, from the temper and 
determination of that house, as manifested in its proceedings, 
that they would have been eagerly seized upon as causes of 
complaint. They allege, that the deputies, and the officers of the 
province, both civil and military, were under the control of the 
Jesuits, and the churches all appropriated to the uses of what 
they term Popish idolatry; and that, under the permission or 
connivance of the government, murders and outrages of every 
kind were committed by Papists upon Protestants. Adverting 
to the sovereignty of the crown, they represent that no allegiance 
was known in the province, except that to the proprietary ; and 
that the very acknowledgment of English sovereignty was re- 
garded as a crime; and in proof of this, they refer to the ill usage 



Chap. III.] GOVERNMENT OF MARYLAND. 241 

offered to some of the king's officers of the customs, at the very 
period when the proprietary stood by the side of his province to 
protect it, as far as possible, against the commercial tyranny of 
England. They charge upon the proprietary, the continual ex- 
ercise of the power of declaring laws void by proclamation; and 
they dwell upon the delay of the deputies in acknowledging king 
William, and their alleged plots with the French and Indians. 
" But above all, (say they in conclusion,) we consider ourselves, 
during this general jubilee, discharged from all manner of fidelity 
to the chief magistrates here ; because they have departed from 
their allegiance, upon which alone fidelity depended, by endea- 
vouring to deprive us of our lives, properties, and liberties, which 
they were bound to protect." (10) 

11 illiam wanted no very urgent reasons to induce him to sus- 
tain the associators. His interests and inclinations both prompt- 
Royai govern- ed him to place the powers of government, through- 

ment estnblished ... . , . . 

in Maryland. out his dominions, in the exclusive possession of 
the Protestants. It gave security to him on his throne, which 
he prized quite as highly as security to the Protestant religion. 
The revolution was sanctioned; and the province remained un- 
der the dominion of the convention, until April, .1692. During 
that period, when the ultimate destination of the province was not 
yet fixed, the convention was again assembled in Sept. 1690; but 
both at this session and that of August, 1689, they do not appear 
to have made any attempts at a permanent organization of their 
government. They had thrown themselves upon the pleasure of 
the king, whom they besought to take the province under his im- 
mediate protection and government; and in gratification of their 
wishes as well as his own, in June, 1691, he established a royal go- 
vernment for it, at the head of which he placed, as governor, sir 
Lionel Copley. Sir Lionel arrived in the province in 1692; and on 
the 9th April, 1692, be dissolved the convention. Thus was the 
province placed under the direct administration of the crown; 

(10) Tin tion is prcscrv cdin Chalmers, 382, and ter- 

minates his into the colonial history of Maryland. 

31 



2 12 HISTORY OF THE ROYAL [Hist. View. 

and from this, the period of its full establishment, the royal go- 
vernment endured until 1715. (11) 

An Assembly was immediately convened, and then began 
the work of adapting the government to its new basis. The 
First Assembly opening message of governor Copley, after com. 

undcr the new ... . c , . . 

government. menting upon the gracious intentions ol the king 
in sending them a Protestant governor, agreeably to their ad- 
dress, and his own zeal for their interests, in hastening, un- 
daunted, through all difficulties and dangers, to accomplish their 
wishes, recommended to them a course of moderation. "The 
making of wholesome laws, and laying aside all heats and 
animosities that have happened amongst you of late, (says 

(11) We cannot find a better exposition of the injustice of this measure, 
than that furnished by the very proceedings of the crown, in divesting the 
proprietary of his government. These show conclusively that there was no 
sufficient reason for vacating the charter ; and that the government was re- 
sumed by the crown upon the plea of " political necessity," which has always 
been deemed the " tyrant's argument." 

The charges against Lord Baltimore, were investigated before the privy 
council, by which an order was passed, on the 21st August, 1G90, directing 
the attorney general to proceed forthwith by scire facias against the charter. 
The proceeding advised was too dilatory ; and under the new order of things, 
it required some proofs of abuse of power to sustain it. The crown took a 
shorter road to its political purposes. It resolved upon the assumption of 
the powers of government, without waiting for judicial sanction. The pro- 
prietary remonstrated, but without effect. He was heard by counsel, in op- 
position to the measure ; but the king found no difficulty in procuring " a le- 
gal opinion" to cloak the arbitrary character of the proceeding. We almost 
blush to name Lord Holt as the high authority behind which the crown en- 
trenched itself. Even his high character as an impartial and inflexible judge, 
cannot shield him from the suspicion of having yielded his judgment to the 
royal will, in the expression of that opinion. We give the opinion, that the 
reader may judge for himself, and learn how necessary to all is the petition, 
" lead its not into temptation." 

" I think it had been better, (says he, addressing the President of the privy 
council) if an inquisition had been taken ; and the forfeiture committed by 
the Lord Baltimore had been therein found, before any grant be made to a 
now governor : yet since there is none, and it being a case of necessity, I think 
the king may, by his commission, constitute a governor, whose authority will 
be legal, although he must be responsible to Lord Baltimore for the profits. 
If an agreement can be made with Lord Baltimore, it will be convenient and 
easy for the governor that the king shall appoint. An inquisition may at any 
time be taken, if the forfeiture be not pardoned, of which there is some doubt." 
1st. Chalmers' Opinions, 29. 



Chap. III. J GOVERNMENT OF MARYLAND. 243 

he,) will go far towards laying the foundation of lasting peace 
and happiness to yourselves and your posterity; and this, I 
know, will be very acceptable to their majesties, who are emi- 
nent examples of Christian and peaceable tempers." (12) How 
the Assembly understood this, will appear in the sequel. In 
their loyal address to the crown, of 18th May, 1692, they offer- 
ed their most hearty acknowledgments for their majesties' con- 
descension, in taking the government into their own hands, and 
in redeeming them "from the arbitrary will and pleasure of a 
tyrannical Popish government, under which they had so long 
groaned;'' and to work they went, to strengthen the foundations 
of the new government, and to illustrate their notions of religious 
liberty, by giving exclusive establishment to their own church, 
and taxing all the inhabitants for its support. 

The first act which they passed, was, " the act of recognition , 
of William and Mary;" and the second, "an act for the service 
The church of of Almighty God, and the establishment of the Pro- 

Eneland esla- ..... . „ 

bhahed by law. testaut religion in this province. By the latter, the 
Church of England was formally established ; provision made for 
dividing all the counties into parishes, and the election of ves- 
try men for each, for the conservation of the church interest- ; 
and a poll tax of forty pounds of tobacco, imposed upon ever) 
taxable of tin- province, to build churches and sustain their mi- 
nisters. Thus was introduced, for the first time in Maryland, a 
church establishment, sustained by laid, and fed by general taxation. 
Under the gentle auspices of thai government, whose tyranni- 
es] and Popi>h inclinations were now the favorite theme, the 
iu Mtabffcb. profession and exercise of the Christian religion, in 
\T"L'u JlZ'y'ni : '" ' ta modes, was open to all — no church was esta- 
the provmce. bushed '• all were protected — none were taxed to 
sustain a church, to who-e tenets tiny were opposed: and tli'' 
people gave freely aaa benevolence, what they would have.' loathed 
as a tax. Perhaps tin- was not entirely owing to the spiril of 

toleration. Tin- fallen ami corrupt nature of man IS ever Warring 
against tin- spiril ; and tl requires all the ell'orts of reason, ami 
the injunctions of the gospel, to retain us in steady obe- 
dience i" i1 gentle dictates. In the midst of sorrow ami suffer- 
ing, to forgive ouroppn an effort to winch human nature 

(12) Upper House Proceedings, 10th May, 1602. Lib I I I 



244 HISTORY OF THE ROYAL [Hist. View. 

is seldom equal : yet even this does not so task the purity and 
benignity of the heart, as the hour of power and triumph. Of 
all the sects and parties which have ever divided men, how few 
are there, who, in that hour, beholding their adversaries prostrate 
at their feet, have wholly forgiven the injuries of the past, or 
have stooped to assuage their sorrows, and to win them from 
their errors by the language of kindness and persuasion. The 
proprietary dominion had never known that hour. The Pro- 
testant religion was the established religion of the mother coun- 
try: and any efforts, on the part of the proprietaries, to oppress 
its followers, would have drawn down destruction upon their own 
government. The great body of the colonists were themselves 
Protestants : and, by their numbers, and their participation in the 
legislative power, they were fully equal to their own protection, 
and too powerful for the proprietaries, in the event of an open 
collision. The safety of the latter was therefore identified with 
a system of religious toleration. But by the revolution, the go- 
vernment was placed in a very different condition. The people 
of the colony were principally Protestants : and both here and 
in the mother country, they had just emerged from a struggle 
commenced, and avowedly prosecuted for the defence of their 
religion, and terminating in complete triumph. With all the 
power, persuasions, and excitement of the moment, to tempt 
them to the measure, they yielded to the temptation. The 
Church of England was established by law : and from the passage 
of this act of 1692, until the American revolution, it continued 
to be the established church of the colony. 

Such exclusive establishments are like all-devouring death. 
They are ever crying for "more." Their first aim is to establish 
Consequences of themselves : and their next to oppress all others, 
mem. es The usual consequences soon followed. It was 

not enough to have the power of the laws, and its intrinsic me- 
rits to sustain itself: it must have penalties to awe into silence 
all who might obstruct its universal sway. Hence the act of 
1704, chap. 59, entitled "An act to prevent the growth of Popery 
within the province." Under this act, all bishops or priests of the 
Catholic church, were inhibited, by severe penalties, from saying 
mass, or exercising the spiritual functions of their office, or en- 
deavoring, in any manner, to persuade the inhabitants of the pro- 



Chap. HI] GOVERNMENT OF MARYLAND. 245 

vincc to become reconciled to the church of Rome : Catholics, 
generally, were prohibited from engaging in the instruction of 
youths: and power was given to the Protestant children of 
Papists, to compel their parents to furnish them a maintenance 
adequate to their condition in life. At the same Bession, how- 
ever, an act was passed, suspending the operation of these penal- 
ties/as to priests exercising their spiritual functions in private 
families of the Catholic persuasion : and this exemption was kept 
up throughout this era, by succeeding acts. (13) 

The course pursued as to the Protestant dissenters, exhibited 
more toleration. For some years after the revolution, the Quale 
ers were regarded by the Protestants of the established church 
condition or e*. with almost as much aversion as the Catholics. The 
££££rferfl!e" pacific tenets of this sect, and its peculiarly simple 
„w govern- forms of worship> were still mistaken for disaffection 
to the government: and to the devotees of the newly established 
church, nonconformity to its rites and doctrines was a crime in 
Protestant or Catholic. In their understanding, the Protestant 
church was nothing more or less than the Church of England ; and 
like allexclusives, in the first moments of power, they acted upon 
the doctrine, » He that is not with us, is against us." The Quak- 
ers were persecuted: and even the calmness and silence of their 
conventicles, where disorder itself might be softened into con- 
templation, could not exempt them from the appellation of un- 
lawful assemblages. In England, the course of the government 
was more conformable to the avowed purposes of the Protestant 
revolution. One of its first acts, after the elevation of William 

(13) Acts of 1704, chap. 95 ; and 170G, chap. 9th, which gave place to 
the act of 1707, chap. 6th, suspending all prosecutions in such excepted cases, 
during the Queen's pi « appears from the recitals of this act, that 

Ihfc suspension was a. the instance of the crown. At length, in 1,18, this 
act of 17n pealed by the act of 1713, chap. 4th : which last men- 

tioned act assig ^ • mm for the repeal, the existence oi the English 

statute 11th and 12th William 3d, chap. 4th. Bj thh statute, says the pre- 
amble to this repealing act, sufficient provision is made to prevent the growth 
of Popry in this pnn ince, as throughout all others, his Majesty's dominions ; 
and « an act of Jfaemb* ran in no way alter the effect of thai Mute, Be H 
t herc f„r, i amtafcmol the supremacy of the legislate 

power of Parliament in matters of internal regulation, is a novelty in the le- 
gislative records of Maryland. 



246 HISTORY OF THE ROYAL [Hist. View. 

and Mary to the English throne, extended toleration to all Pro- 
testant dissenters. It was a measure of policy as well as jus- 
tice : for it behoved William to strengthen himself upon his 
newly acquired throne, by rallying around it the affections of all 
his Protestant subjects. This policy at length prevailed in Ma- 
ryland. In 1702, the provisions of the English toleration act 
were expressly extended to the Protestants of the province : 
and the Quakers of the province were declared to be enti- 
tled to the benefit of the act of 7th William, 3d. permitting 
their affirmation to be received instead of an oath in certain 
cases. (14) Prosecutions having been subsequently instituted 
for holding Quaker conventicles, and some doubt having arisen 
as to the operation of the toleration act, it was again express- 
ly adopted in 1706, as a part of the laws of the province. (15) 
Thus the toleration of the Protestant dissenters was fully and 
finally secured ; and thus in a colony, which was established by 
Catholics, and grew up to power and happiness under the gov- 
ernment of a Catholic, the Catholic inhabitant ivas the only victim 
of religious intolerance. 

The next aim of the Assembly was at the proprietary rights 
and revenues, which were not incident to the govcrnmentof the 
province, and were not, therefore, swallowed up by the revolu- 
tion. The rights of the proprietary, under the charter, have al- 
ready been distributed into two general classes, one of which 
Proprietary embraced his rights of jurisdiction, and the other 

rights and inter- , ° J 

ests not affected his rights of soil as the original owner of the lands 

by the revolu- , mi 

tion. of the province. The latter, being rights private 

and personal in their nature and emoluments, were not, of course, 
destroyed by a mere revolution in the government. The proprie- 
tary was still entitled to his quit-rents and alienation fines, and 

(14) Act of 1702, ch. 1, sec. 21st. This act adopts the provisions of the toler- 
ation acts, with the modification, that all things required by them to be done 
before any court, or justice, or justices of the peace, should be done before 
the respective county courts ; and that the registry of the places used for re- 
ligious worship by the Protestant dissenters, should be made amongst the re- 
cords of the county court. 

(15) Assembly Proceedings of 1706, and act of 1706, chap. 8th. This act 
expressly adopts the toleration act of 1st William and Mary, icith all the 
penal acts mentioned therein. The introduction of these recited penal acts ap- 
pcars.to have been the principal object of this law of 1706. 



Chap. HI.] GOVERNMENT OF MARYLAND. 247 

was still the exclusive owner of the vacant lands. Besides these, 
he enjoyed revenues, arising from the port duty and the tobacco 
duty ; the origin and extent of which have already been ex- 
amined. Of these he claimed, as private and personal, all 
arising from the port duty, and the one half of that arising 
from the tobacco duty. (16) He had also, whilst he held 
the government, enjoyed personally the revenue arising from 
fines and amercements. The land office was closed on the 18th 
of April, 1689, the period when the revolutionary struggle be- 
gan, and was not again opened until the 23d May, 1694, when 
the contest about his land rights was terminated. But pending, 
and immediately after the revolution, Lord Baltimore asserted 
his claim to the revenues arising from the sources above men- 
tioned, and instructed his agents to proceed in the collection of 
them. 

In this he was sustained by the crown. Whatever William's 
policy as to the disposition of the government, he yet did not 
These private l° se sight of justice, in his proceedings as to the 
rtgbta Juatafaied mere private rights of the proprietary. His course, 
as to these, reflects honor upon his character ; and 
clearly evidences, that the conduct of the proprietary, during the 
revolution in England, had not been such as to forfeit all claims 
to his favor. In February, 1G89, even before the revolution com- 
menced in (he province, he received a royal letter, authorising 
him to collect his revenues and duties in Maryland : and after 
the consummation of the revolution, in February, 1690, an order 
was passed by the king in council, giving him the same general 
liberty. The leaders of the revolution obeyed the king's injunc- 
tions, when it answered their own purposes; but on this occa- 
sion, they chose to disregard them. The proprietary's agents 
were thrown into prison, and harassed in everj manner, so that 
they were unable to avail themselves of the liberty granted: and 
Baltimore was again c polled to apply to the king for protec- 
tion. A litter of instruction was now given by the crown to sir 
Lionel Copley, who was jusl about to assume the government of 
the province, enjoining it upon him to take care that the agents 
of Lord Baltimore " were permitted to live peaceably and qui- 
ctly, and to act as formerly in receiving Ins dues ami revenues in 

(10) Bopra, lTGan.I 178. 



£48 HISTORY OF THE ROYAL [Hist. View. 

the province; and that no vessels should be cleared from it until 
they had paid their shipping dues." (17) 

All would not suffice. Mr. Darnall, the proprietary's agent 
and receiver general, still encountering the same difficulties, at 
ultimate dispo- the session of May, 1692, he preferred a petition to 

sition of these ., . , , 

rights. the governor and councd, praying that some order 

might be passed to insure him the liberty granted by the king's 
letter of 1691. In this petition, he requested that all the bonds, 
records, and other documents, relative to his lordship's rents and 
lands, might be delivered to him; that he might be permitted to 
take possession of the proprietary's houses and plantations, and 
particularly those of Mattapany and Notley Hall ; and that the 
governor would designate ports of clearance, at which he might 
appoint agents to receive the shipping dues. (18) The subject of 
this petition was referred to the lower house. That house de- 
termined, that the port duty of 14c?. per ton was, in its origin, a 
fort duty, given to the proprietary for building magazines and 
purchasing munitions of war for the defence of the province ; 
and that as such, it belonged to the public; and that as to the 
tobacco duty, which was originally given under an agreement 
with the proprietary as to his fines and quit-rents, it should still 
be continued, if the proprietary would adhere to this agreement, 
and would also continue his conditions of plantation, as they ex- 
isted before the revolution, or as they then existed in Virginia ; 
so that vacant lands of the province might still be obtained upon 
favorable terms. To the fines and amercements accruing after 
the revolution, it wholly denied his right; and as to the records 
and papers relative to his lands, it decided that all of these might 
be surrendered, except the certificates of survey and land records 
proper; which, as the only evidences of land titles, should be re- 
tained, and placed in the custody of the secretary of the pro- 
vince. This decision was concurred in by the upper house; 
and in conformity to it, an order was passed by the Assembly, 
prohibiting Lord Baltimore's agents from collecting the port 
duty, which was directed to be collected by the agents of the go- 
vernment, and placed in bank, to await the king's determination. 

(17) This letter of 12th November, 1691, in its recitals, sustains the state- 
ments above made as to the course of the crown. 
(IS) Council Proceedings, Liber F F, 641. 



Chap. Ill] GOVERNMENT OF MARYLAND. 949 

(19) Thus asserting the right of the province to the tonnage 
duty, the Assembly now passed an act directing its appropria- 
tion for the support of government; (20) by the passage of 
which, the subject was brought directly before the king in coun- 
cil. It was there determined, in conformity to the opinion of 
the solicitor general, that the proprietary was entitled, in his own 
right, to the tonnage duty of lid. per ton, and to the one half of 
the two shillings per hogshead duty on tobacco; but that as to 
the fines and forfeitures, they were incident to the government, 
and passed with it to the crown. (21) The act was therefore dis- 
sented from ; and from this period until his restoration, the pro- 
prietary does not appear to have been interrupted in the collec- 
tion and enjoyment of these revenues. 

Some further difficulties still occurred as to his land rights. 

Sir Thomas Lawrence, the secretary of the province, in whose 

custody the land records were placed, would not permit Lord 

Baltimore's agent, to resort to the records, and 

Adjustment and ° 

condition of make searches and extracts from them, except upon 
the proprietary's 

Land k, L 'hu ,iur. the payment of his fees of office. Without detail- 
ing lliu era. 

ing the various proceedings connected with this 
controversy, it will suffice to say, that after having reached the 
king in council, it was then terminated by agreement. The land 
records were to be kept in the custody of the secretary of the pro- 
vince. Warrants were to be issued, surveys made and returned, 
and patents granted, by the proprietary's officers. The patents 
were to be issued under the proprietary's seal, and recorded in 
the secretary's office. As the bonus of the compromise, one half 
of all the fees arising from issuing warrants and patents, and 
entering certificates of survey, was to be paid to the secretary; 
and the agents of Lord Baltimore were allowed free access to the 
land records in the secretary's office, for the purpose of perfect- 
ing his rent roll. (22) This agreement was confirmed by the 

(19) Council Proceedings, FF, 640 to 643, 661 and 670. 

(20) Act of 1602, chap. 17. 

(21) Council Proceedings of 2d October, 1693, and Bacon's note to the 
act of 1692, chap. 17, which seta out at large the proceedings of the king in 
council. 

The proceedings connected with this controversy, maj bi traced in 
1 ppex li.'.-. Pi Liber FF, 750 to 753 j 764, 775, and Libi t ill* 

part 2d, 347. 

32 



250 HISTORY OF THE ROYAL [Hist. View. 

king in council, on the 13th February, 1695, (old style,) but the 
rights of the proprietary were previously so far secured, that the 
land office was opened on the 23d of May, 1694. From that 
period, it remained open and under the direction of the proprie- 
tary, until the 15th of May, 1711 ; when it was closed in conse- 
quence of the death of Colonel Darnall, the agent and receiver 
general; but was again opened on the 2d of March, 1712, (old 
style,) and remained open until the restoration. During this 
era, the proprietary encountered occasional difficulties in the 
collection of his rents; but this recognition and legal establish- 
ment of his rights in the manner above described, existed during 
the continuance of the royal government. 

The old city of St. Mary's was the next victim of the revolution. 
Coeval with the colony itself, it had hitherto been the permanent 
seat of the provincial government. The original site of the colo- 
city of st. Ma- nv > anc *> ^ or some years after its establishment, the 
r y' 3 - centre of the whole settlement, it soon attained to 

all its destined maturity. In a few years after the landing, it 
numbered sixty houses ; and it scarcely ever exceeded that, at 
any after-period. The colony was now beginning to diffuse 
itself along the shores of the bay to the extremities of the pro- 
vince ; and within thirty years after its first planting, this city was 
already a remote point on the southern extremities of the settle- 
ments. The commerce of the province, as unrestrained as its 
population, found its outlets at every point to which the latter 
extended ; and St. Mary's soon ceasing to be its commercial em- 
porium, became a mere landing place for the trade of its own im- 
mediate neighborhood. The habits and pursuits of the inhabi- 
tants, devoted as they were to planting, and relying for their sup- 
plies almost exclusively upon the parent country, left it without 
any other permanent population, than that which is necessarily 
incident to the site of a government. At a period when most 
of the facilities of travelling which we now enjoy were unknown, 
and the business of the government and courts centred to a much 
greater degree in the capital, than it does at this day, the re- 
moteness of its situation from the great body of the settlements, 
was a source of inconvenience and expense, always felt, and often 
complained of. Still the will of the proprietary, and the feelings 
of the people, all conspired to sustain the privileges of this ancient 



Chap. III.] GOVERNMENT OF MARYLAND. 251 

city and as late as 1602, when the inconveniences of resort to it, 
were as sensibly felt as at any after-period, with a view to the 
permanent establishment of the legislature, an act was passed, 
authorising the purchase of land at St. Mary's, for the site of a 
state house; and another in 1674, to defray the expense of ,ts 
erection, under which it was actually built, at an expense which 
shows that it was a work of some taste and magnitude. (~<3) In 
the year 1671, the then town of St. Mary's received a new acces- 
sion to its consequence by its erection into a city, with the privi- 
lege of sending two delegates to the Assembly. Yet with a 1 these 
advantages and expenditures, to give it permanency as the seat 
of government, the proprietary, in 1683, yielded to the wishes of 
the inhabitants, and removed the Assembly, the courts and the 
offices, to a place called the Ridge, in Anne Arundel county, at 
which one session of the Assembly was then held. The want of 
the necessary accommodations soon drove them from that place ; 
and they were then removed to Battle creek on the Patuxent, 
where, after a session of three days, the provincial court, from the 
same cause found it necessary to adjourn. The scat of govern- 
ment was now brought back to St. Mary's ; and to encourage the 
inhabitants in its improvement, the proprietary then gave them 
a written assurance, that it should not be removed again during 

his life. (2-1) ■ ... 

There it remained, until the Protestant revolution, which 
brought with it a new order of things, and the dissolution of 

(23) Acts of 1662, chap. 2 ; 1674, chap. 16, and the statement of the peti- 
tion of the Mayor, Recorder, Aldermen, &c. of the city of St. Mary's, prefer- 
red to the Assembly at the session of October, 1694, which see in Upper 
House Proceedings, Liber F F 765,-lt appears, that 330,000 lbs. of tobacco 
were appropriated to defray the expense of its construction ; and [00,000 
lbs contributed by the city of St. Mary's. This building endured until the 
present year, when iU remains were destroyed, and a - burcb is no* b 
erected on or near its site. Notwithstanding its antiquity, it wa« *aWto6fe J as I 
have been informed, even down to the present year, and had been use,! foi 
MDVieanbefore its entire destmction as a place of wbrship. Suet a i 
nentdfourcolonial existence might have > < <<" '•«" "" ravages of 

lime . in very A wlation - unwU potttf a moral" and the recollections which. 

it brings back, " adorn tin history <>/u f\ 

( o,tp a taineubythepelUio»ofthecityof6t.M 

inJppern,,,, i', I i res.referredtoinnextnoteabov; oodan 

not denied in the answer of th< Lowei House. 



252 HISTORY OF THE ROYAL [Hist. View. 

all the feelings, which had hitherto retained the government at 
this city, to the inconvenience of the province at 

Influence of the 

Protestant revo- large. It was the interest of the new government to 

lution upon its . 

rank and privi- destroy, as far as possible, the cherished recollections 

leges. 

which were associated with the departed proprietary 
power; and there was no object so entertwined with all these 
recollections, as this ancient city; consecrated by the landing of 
the colonists, endeared to the natives as the first home of their 
fathers, and exhibiting at every step the monuments of that gentle 
and liberal administration, which had called up a thriving colony 
out of the once trackless wilderness. The Catholics of the colony, 
dwelt principally in that section of it ; and under the joint opera- 
tion of these causes, it had been distinguished during all the trou- 
bles consequent upon the civil wars in England, by its unshaken 
attachment to the proprietary. Without these considerations to 
prompt to the removal, the recollections and the attachments, 
which centre the feelings of a people in an ancient capital, would 
probably have contributed to preserve it as such ; until, by the 
denseness of the population, and the increasing facilities of travel- 
ling thereby afforded to the remote sections of the State, the objec- 
tion to its location would have been in a great degree obviated ; 
and the city of St. Mary's would at this day have been the seat of 
our State government. The excitement of the moment, made its 
claims to recollection, cogent reasons for its destruction ; and 
the public convenience came in as the sanction. 

At the session of Assembly, in 1G94, the removal of the go- 
vernment was resolved upon, and measures taken to carry it 
immediately into effect. The ancient city remonstrated, en- 
treated, offered, reminded ; but all to no purpose, 
government from Antiquated as they are, her petition, and the reply of 
the lower house, are not without interest and amuse- 
ment. She experienced the fate which is common to all things 
mortal, in the days of adversity and decline. "They laughed at 
her calamities, and mocked when her fears came upon her." 
In the petition then presented by her mayor, aldermen re 
corder, common council, &c. &c. after dwelling ^o:. her a 
cient rights and privileges, sustained by their long ujoynient, and 
confirmed in the most solemn manner by the late proprietary, 
and upon the advantages of a site, well watered, and surrounded 



Chap. III.] GOVERNMENT OF MARYLAND. 253 

by a harbor where five hundred sail might ride securely at an- 
chor; they proposed to obviate all the objections, as to the want 
of accommodations and the difficulty of coming there, by keeping 
up, at their own expense, a coach or caravan, or both, to run 
daily during the session of the legislature and the provincial 
courts, between that city and the Patuxent, and weekly, at other 
times ; and at least six horses, with suitable furniture for all per- 
sons having occasion to ride post. The reply of the lower house, 
is a specimen of the style, wit and temper of the day. Ridiculing 
the notion that they were bound by what the proprietary might have 
done, they remark : *•• As to the great expenditure of money in im- 
proving the place and country around, it is against the fact, for 
more money has been spent here by the rest of the province, than 
its inhabitants, and all the people for ten miles round are worth ; 
and yet, after sixty years experience, and almost a fourth of the 
province devoured by them, they still, like Pharoah's kine, remain 
as lean as at first ; and we are unwilling to add any more of our 
substance to such ill improvers. The place we propose, is a more 
central part ; and as well watered, and in every respect as com- 
modious a- Si. Mary's, which has hitherto served only to cast a 
blemish upon the rest of the province, in the eyes of all discern- 
ing men, who, perceiving the meanness of the head, must judge 
proportionably of the body ; and as to the proposition for coaches, 
&c. the general welfare of the province ought to take the place 
of that sugar-plum, and of all the mayor's coaches, who as yet 
never had one." (25) 

The place selected as the new site of the government, was 
a point of land at the mouth of the Severn river, called 
" Proctor's," or " Tlie town land at Severn." Before that period, 
Place srwte.i in ' l appears to have been one of that class of towns, 
■SJutf g.'jveni- which had the three necessary unities already allu- 
ment - ded to ; and is described in the act of 1783, chap. 

83, relative to the ports and places of trade in the province, as the 
'■ Town 'it Proctofi ;" bat it had not attained to that elevated 
privilege, given by the "23d section of that act; which, in its wise 
designs to keep the towns it en ated off 1 the parish, denied to 
them the right of -ending a citizen or citizens to the Assem- 

(25) Upper House proceedings of 1694, Liber P P, 7Gf>an<l 7. I 



254 HISTORY OF THE ROYAL [Hist. View. 

bly, until they were inhabited by as many families, as were able to 
defray the expenses of their delegates, "without being chargeable 
to the county." At the period of removal, it was described as "The 
town land at Severn, where the town was formerly ;" and as prelimi- 
nary to the removal, it was now erected into a port of entry and 
discharge for the commerce of the province, under the name 
of Anne Arundel town ; and an act passed for the establishment at 
it, of the Assembly and provincial courts. (26) The final remo- 
val of these from St. Mary's, took place in the winter of 1694- 
1G95, and the first Assembly was held at Anne Arundel town, 
on the 28th February, 1G94, (old style.) At the next session, it 
acquired the name of the Port of Annapolis, and became also the 
place of sessions for the courts of Anne Arundel county. (27) 

It was not erected into a city, invested with the privilege of 
sending delegates to the Assembly, until 1708. From the moment 
of its establishment, no efforts were spared by the new govern- 
Growth of An- ment to enlarge its population, and improve its 

napolis, and . . . , , , 

downfall of the accommodations, so as to give it a permanent hold 

city of St. Ma- . . . . ,, . . . . _ 

ry's. upon the province; yet with all these aids, it at first 

increased but slowly. A person writing from Maryland, within 
four or five years after the removal of the legislature to this place, 
remarks : " There are indeed several places for towns, but hitherto 
they are only titular ones, except Annapolis, where the governor 
resides. Col. Nicholson has done his endeavor to make a town 
of that place. There are about forty dwelling houses in-it; seven 
or eight of which can afford a good lodging and accommodations 
for strangers. There are also a state house and a free school, 
built of brick, which make a great show among a parcel of 
wooden houses ; and the foundation of a church is laid, the only 
brick church in Maryland. They have two market days in a 
week ; and had Governor Nicholson continued there a few 
months longer, he had brought it to perfection." (28) A later 
account of it, represents it as in nearly the same condition, dur- 
ing governor Seymour's administration in 1708. (29) It yet 

(2G) Acts of 1G94, chapters 8 and 9. 

(27) Acts of 1C95, chapters 2 and 7. 

(28) 1st British Empire in America, 333. 
<29) Same, 338. 



Chap. III. J GOVERNMENT OF MARYLAND. 055 

wanted the rank and privilege of a city; and it received these, 
just as they were dropping from the expiring city of St. Mary's. 
That ancient place, once so venerable in the eyes of the colonists, 
and yet memorable in its connexion with the foundation of a free 
and happy state, after ceasing to be the capital, did not lon^ 
retain the rank which only mocked its downfall. It lost its privi- 
lege of sending delegates in 1708; and soon expired from 
mere inanition. One by one, all its relics have disappeared; 
and in the very State to which it gave birth, and the land it 
redeemed from the wilderness, it now stands a solitary spot, 
dedicated to God, and a fit memento of perishable man. 

Its more fortunate successor was erected into a city by a char- 
ter granted on the 10th day of August, 1708, by the honorable 
John Seymour, then the royal governor of the province. (30) It 
Annapolis erect- appears to have been one of his favorite designs, and 
ProvSionsof ita was proposed by him to the Assembly, as early as 
ci.urtur. IH){. No measures being adopted by the latter to 

carry his wishes into effect, he at length conferred the charter, 
by virtue of the prerogatives of his office. Under this charter, 
besides the powers and privileges relative to the organization and 
exercise of its municipal government, the city of Annapolis ob- 
tained the privilege which she has ever since enjoyed, of elect- 
ing two delegates to the General Assembly. As this charter still 
subsists, and principally determines, even at this day, the extent 
of the elective franchise within the city of Annapolis, it is neces- 
sary to advert to its provisions, so far as they related to this right. 
The qualifications required by it for the delegate, were, that he 
should be an actual resident of the city, and have therein a free- 
hold or visible estate, of the value of £20 sterling. The persons 
permitted to rote were, the mayor, recorder, aldermen, and com- 
mon council men of the city ; all freeholders oft he city, who are 
defined to be "all persona owning a whole lot of land, with a 
boose built thereon according to law;" all persons actually resi- 
ding and inhabiting in said city, having a visible estate of £20 
Sterling ; and all persons having served an apprenticeship offivc 

(30) The, original charter has lately been discovered by Mr. Brewer, the 
b 1 , amongst the records of the land office ; and there is a record of it 

rda of the chancery office, in Liber r C, page 5'JO". 



256 HISTORY OF THE ROYAL [Hist. View, 

years to a trade within the city, provided three months had 
elapsed since the obtention of their freedom, and they were 
also actual housekeepers and inhabitants within the city. The 
writ of election was to be directed to the mayor, recorder, and 
aldermen ; who became, thereby, the judges of the election. 

The power of erecting cities, was one expressly granted to 
the proprietary by the charter of Maryland, and with great pro- 
Assembiy pro- priety : as it was but the proper incident, of his 

ceedlngs as to its 

charter. commercial privileges, and of his general power of 

convening assemblies. The royal governors, however, stood in 
a very different predicament ; and the exercise of this preroga- 
tive, without an express authority from the crown, does not ap- 
pear to have been warranted, either by the nature of their office, 
or the terms of their commissions. So thought the lower house 
of Assembly at that period ; and hence, at the first session at 
which delegates appeared from that city, the session of Septem- 
ber, 1708, it denied the right of the governor to confer the char- 
ter, and expelled the delegates elected under it. Astonished 
at a measure so bold and unexpected, the governor, at first, at- 
tempted to win it to his purposes by conciliation. Its members 
were summoned to the upper house, where they were ad- 
dressed by him in language disclaiming all intention to interfere 
with their rights and privileges in determining the election of 
their own members, but claiming for himself also, the compe- 
tency to judge of his own prerogatives : and they were urged to 
return to their house, and rescind their resolution. In jus- 
tification of themselves, they replied, that the course pur- 
sued by them was founded upon the complaint of some 
of the freeholders and inhabitants of Annapolis, who conceiv- 
ed that it affected their rights as freemen, and particularly as 
to the privilege of voting for delegates ; that the right to erect 
cities, was not expressly vested in the governor, and ought not 
therefore to be exercised until the queen's pleasure was known : 
but that they would cheerfully concur with him in granting the 
charter, if all the inhabitants and freeholders of the place desired 
it, and were secured, in their equal privileges as to the choice of 
delegates, and in all other privileges to which they were entitled 
by the laws of England, and, at the same time, the public lands 
and buildings secured to the uses for which they were purchased. 



Chap. III.] GOVERNMENT OF MARYLAND. 257 

The governor now tried the usual expedient With a refractory 
house. (31) The Assembly was dissolved : and a new house 
immediately summoned, which he at first found quite as unman- 
ageable as the old. Their first message desired him to inform 
them, if he had received from her majesty any instructions au- 
thorising the grant of charters and the erection of cities, which 
were not contained in his commission: and if so, to communi- 
cate them. His brief reply was, "that he had no doubt of his 
own right: and if the exercise of the power was unwarranted, 
he was answerable to her majesty, and not to them." To bring 
this difference to a close, a conference was now had between 
the two houses ; which terminated in a compromise, and in the 
passage of the act of 1708, chap. 7th, to carry that compromise 
into effect. By this act, the charter of Annapolis was confirm- 
ed, under certain reservations as to the public buildings, and re- 
strictions of the municipal power, which it is not necessary here 
to notice : and with the reduction of the public allowance to its 
delegates for attendance in Assembly, to the one half of that 
granted to the several delegates from the counties. (32) 

From this period, this city was continually on the advance. 
It never acquired a large population, nor any great degree of 
Ultimate rank commercial consequence : but long before the era 
Arniapoiu'muier of the American revolution, it was conspicuous as 
government. 13 ^ the seat of wealth and fashion: and the luxurious 
habits, elegant accomplishments, and profuse hospitality of its 
inhabitant.-, were proverbially known throughout the colonies, 
ft was the only place in the province affording the means of 
gratifying those luxurious longings and fastidious appetites, 
which belong to indolent wealth, striving to escape from the po- 
verty of it- internal resources by the novelty which it buys, and 
calling that "enjoyment" which relievee it from the ennui of the 
moment, even by occupation in trifles. It was the seat of a 
thy government, and of its principal institutions; and as such, 
congregated around it. mam whose liberal attainments eminent- 
ly qualified them for society, and the endowments of whose 
oilier- enabled them to keep pace even with the extravagance 

(31 . i from 1699 to 1714 945 to956. 

(32 bap. Tile 

33 



258 HISTORY OF THE ROYAL [Hist. View. 

of fashion. Where there is honey, there will be bees. The 
wealth, fashion, and ambition of the province, all tended to the 
capital, and soon drew to them the means of gratification. 
Youth, beauty, and intelligence soon chastened these into refine- 
ments, and shed around them the most dangerous allurements 
of pleasure: and Annapolis became, what a modern city now 
styles herself, the Athens of America. How far it contributed to 
her moral improvement, or social happiness, we shall not under- 
take to say. Tradition even yet preserves many a narration of 
the chroniclers of olden times, to incline to the belief, that her 
pleasures, alike those of luxurious and pampered life in all ages, 
ministered neither to her happiness nor her purity. (33) 

(33) A French writer, in speaking of this city as he found it during the 
progress of the American revolution, when it may be reasonably inferred, 
from the distresses of the moment, that the tone of society was considerably 
subdued, thus describes it — "In that very inconsiderable town, standing at 
the mouih of the Severn, where it falls into the Bay, of the few buildings it 
contains, at least three-fourths may be styled elegant and grand. Female 
luxury here exceeds what is known in the provinces of France. A French 
hair dresser is a man of importance amongst them; and it is said, a certain 
dame here hires one of that craft at 1000 crowns a year. The state house is 
a very beautiful building; I think, the most so of any I have seen in Ameri- 
ca." New Travels by the Mbe Robin, one of the chaplains to the French Jlrmy 
in North America, page 51. 

This forms a striking contrast to the description given of it, at a much 
earlier period, by a poet calling himself E. Cooke, gentleman, in a poem called 
" The Solweed Factor, or a Voyage to Maryland,'''' for the perusal of which I 
have been indebted to the kindness of Mr. Jonas Green, of Annapolis. 

To try the cause, then fully bent, 

Up to Annapolis I went ; 

A city situate on a plain, 

Where scarce a house will keep out rain ; 

The buildings framed with cypress rare, 

Resemble much our Southwark Fair; 

But strangers there, will scarcely meet 

With market place, exchange, or street ; 

And, if the truth I may report, 

It's not so large as Tottenham court — 

St. Mary's once was in repute, 

Now here the Judges try the suit; 

And lawyers twice a year dispute — 



Chap. Ill J GOVERNMENT OF MARYLAND. 259 

Under a government of laws, the character of its subordinate 

administrators has but little connexion with its history. In its 

Political liber- transition from a proprietary to a royal government, 

lira ii'lo- . r •, , , , . . . 

ny Dot affected the province 01 Maryland lost none of its political 

"'"-'' "' l-l • T -11 " • 1 • 11- n i 

government. liberties. It still retained its assemblies of the free- 
men : and the manner of their organization was determined by 
laWj ai the verj first session of Assembly held under the new 
government. (34) All that related to the extent and exercise 
of the elective franchise, being thus placed beyond the control 
of the royal governors, the powers of the latter were limited to 
their ri^lit to convene, prorogue, or dissolve the assemblies. 
These powers they could not exercise wantonly, with impunity: 
for they depended upon the assemblies, for what has been very 
appropriately termed " the sinews of government." The power to 
levy taxes of any description, belonged to, and was exercised 
exclusively by, the assemblies. The prerogative of the crown 
Its* If did not venture beyond requisitions to them. The purely 
executive power of appointing to the offices of the province, 
was almost the only one which was susceptible of abuse in their 
bands: and the assemblies held a check upon this, in the nature 
of the salaries and perquisites attached to the offices, even up to 
that of the governor. These were generally granted, for short 
periods, by temporary acts: and thus the executive was retained 
in a state of dependence upon the legislative power, sufficient 
to countervail the preponderance of prerogative. The gover- 
nor- who presided over the province during the royal govern- 
ment, were Six Limnl Copley, Sir Edmond Andros, Francis 
Vicholson, Vathaniel Blackitton, John Seymour and John Hart. 

As oft the bench most gravely meet, 
06 to get drunk, and some to eat 
A swinging share of country treat; 
But as for justice, right or wrong, 
Not one, amongst the numerous throng, 
- u li.it it means, or has the heart 
To vindicate a stranger's part. 
This Poem, with another upon Bacon's Rebellion in Virginia, werepnb- 
Lnnapolu, in 1731; but Mi. Green, by whoso it was then printed, 
r< minds the reader thai it icription written twenty years before, 

which did not agree with the condition of Annapolis at the timeofiti pub- 
lication. 

.'it; Am Ol I 



260 HISTORY OF THE ROYAL [Hist. View. 

The administrations of Copley and Andros were of very short 
duration ; and the only material events connected with them, 
Administrations relate to the establishment of the new government 

of Copley and 

Andros. upon its Protestant basis, as already described ; 

or to the mere organization and administration of its institu- 
tions, the consideration of which belongs properly to the several 
histories of those institutions. Copley was received with great joy 
by the province, as its first Protestant governor ; and during his 
short government, he appears to have retained the confidence 
and affection of the colony. Andros, who came in merely as 
an interim governor, is the same person who was so conspi- 
cuous for his connexion with the arbitrary proceedings of king 
James against the chartered governments of New England. 
Neither he, nor his successor in the government of Maryland, 
Francis Nicholson, appear to have lost much of the royal 
favor, by their connexion with those transactions. They had 
only sinned against the liberties of the colonies ; and this was 
no unpardonable offence in the eye of the crown, when it 
was the result of devotion to prerogative. Andros was the act- 
ing governor of Virginia, at the time of his accession to the 
government of Maryland ; and his administration in the former 
colony, is said to have been characterised by mildness and sa- 
gacity. (35) In Maryland, his administration was of too short 
duration to develope either his temper or policy ; and is not dis- 
tinguished by any material results. 

Francis Nicholson, who was appointed to the government of 
Maryland in February, 1694, is distinguished in the history of 
Administration New York, as the deputy governor of that colony, 

of Governor Ni- . . . 

choison. under Andros, at the period of its annexation by 

king James, to the New England colonies. Immediately after 
the Protestant revolution, he was transferred to the government 
of Virginia, as its lieutenant governor, under Lord Howard; 
and continued to preside as such over that colony, until he 
was superseded, in 1692, by the arrival of its new governor, sir 
Edmund Andros. He was commissioned lieutenant governor of 
Maryland in February, 1691; and was, by virtue of his commis- 
sion, entitled to the government of the province immediately 

(35) 2d Burke's History of Virginia. 



Chap. III.] GOVERNMENT OF MARYLAND. 261 

upon the death of Copley ; but being then absent in England, 
the government was assumed by Andros, who continued to ad- 
minister it until Nicholson's arrival in July, 1G94. (36) He ap- 
pears to have possessed a considerable degree of intelligence 
and energy of character. He was the devoted friend of arbitrary 
power, both in church and state ; yet his advances towards this, 
were covered by the utmost courtesy of manner, and regulated 
by a most prudent regard to the circumstances of the times. A 
pliant minister of the crown, he was yet the courtier of the peo- 
ple ; and to win the favor of the people of Maryland, he was 
conspicuous for his devotion, in language, to the rights and li- 
berties of the Protestant church, as by law established. His 
weak point was his vanity ; and under the influence of this, he 
often endangered all the advantages which he would otherwise 
have derived, from his generally conciliating manners, and his 
happy faculty of accommodating himself to the tempers of those 
around him, and the circumstances of his situation. He was al- 
ways engaged in projects, adapted to the temper of the colonies 
over which he presided, and eminently calculated to conciliate 
their favor. When first removed to the government of, Virginia, 
he mixed freely with the people, conversed with them upon the 
topics with which they were familiar, instituted games and exer- 
cises, and distributed prizes, to encourage their favorite amuse- 
ments of running, riding, wrestling, and shooting; and finding 
them most earnestly desirous for the convention of an Assem- 
bly, he convened it against the express instructions of his supe- 
rini. (37) Arriving in Maryland, he found its inhabitants as yet 
fresh in the enjoyment of an exclusively Protestant government; 
and the liberties and security of the Protestant church, the watch- 
word of the day. He now became the most zealous of the or- 
thodox, in its advancement. "Before his time, (says a writer of 
that day,; there were scarcely any Protestant ministers in Mary- 
land ; but governor Nicholson being a great promoter and en- 
courager of the clergy, by his protection, the face of affairs 

(3H) Smith's History of New York, 103; Chalmers's Annals, 590; 2d 
Burke's History of Virginia, 310, 315 and 317; 1st British Empire in Ameri- 
ca, 395. 

(37) 2d Burke, 312, 



202 HISTORY OF THE ROYAL [Hist. View. 

mended, and the orthodox churches were crowded as full as they 
could hold." Annapolis being the child of the Protestant revo- 
lution, and its establishment one of the favorite measures of the 
colony, his constant endeavors were used to improve and in- 
crease it. (38) 

Yet laudable as these efforts were, at the bottom of all lay an 
inordinate ambition and vanity, which could not brook any thing 
its peculiar n ' ce opposition, or a disposition to call his abilities 
traits " into question; and when galled by these, he was 

unable to control his temper, and became even vindictive. He 
was thus involved in several controversies with the Assembly, to- 
wards the close of his administration. His proceedings against 
the celebrated John Coode ; and Clarke, and Sly, who were al- 
leged to be his abettors, fully illustrate this part of his character. 
Coode had provoked his indignation, by calling his administra- 
tion into question, and by the intimation, that as he had pulled 
down one government, he might lend his aid to the overthrow of 
another. Being returned as a member to the house of delegates, 
in 1696, Nicholson objected to him, as "having been in holy 
orders ;" and refused to administer to him the oath of office. The 
lower house insisted upon their exclusive right of judging of the 
qualifications of their own members ; and that in Coode's case, 
the objection was idle, as he had been a member for nearly twenty 
years. The governor, determined not to yield the point, sum- 
moned several of the most distinguished lawyers of the province 
to the upper house ; who gave it as their opinion, that "his hav- 
ingbeen in holy orders, stamped upon him an indelible character 
which the ordinary alone could remove." The lower house still 
adhered to their original ground, notwithstanding the remon- 
strances of the governor and his council ; which at length re- 
vealed the true secret of the objection, by representing him " as 
a meddling and contradictory spirit, who had already cost the 
country more money than he was worth." The governor, find- 
ing them unyielding, refused to qualify him ; and the house were 
thus obliged to proceed to business without him. (39) Having 
dismissed Coode from all his employments, and caused him to 

(38) British Empire in America, vol. 1st, 333. 

(39) Upper House Journals of 1696, 903 and 904. 



Chap. III.] GOVERNMENT OF MARYLAND 263 

be indicted for blasphemy; he followed up his attempts to ap- 
prehend him, with an ardor which never abated during his whole 
administration, and which manifested more of vindictive personal 
feelin<T, than of regard cither for church or state. ( 10) lli< pro- 
inge against Clarke, a lawyer of St. Mary's, and Sly, the re- 
lative of Coode, are tilled with the same spirit; for their principal 
offences seem to have consisted in ascribing to him certain acts 
of licentiousness, as making part of his early history, which did 
not very well comport with his new born zeal for the church. 
(41) Yet when his personal animosity was not thus excited, his 
administration was calculated to win the favor of the people; 
and this, with all his aberrations, he appears to have enjoyed in a 
considerable decree, even down to the period of his removal. 
(42) 

The external relations of the province, during his administration, 
evolved no events which produced any permanent effect upon it- 
External reia- government or condition. They are remarkable 
^"a&JjhiSwt only, for the introduction of thai system of general 
mlBtamuon. contribution amongst the col. .me-, in the defence of 
the frontiers against the French; which was kept up by the 
crown, until the final expulsion of the French from Canada. 
The settlements of the French in Canada had now become formi- 
dable. ExtendiiiL r their fortifications along the lakes, the struggle 
for mastery, which endured for more than half a century, was 

(40) See supra, page 230. 

(41) The proceedings against them will be found in the Council Proceed- 
ings, Liber X, 5C to CG; — and in the records of the provincial courts of that 
period. The acts which these person- ascribed to him, if true, might very 
properly be called " 77/. Memorabilia" pf governor Nicholson; for they are 
more unparalleled even than the raxurioTjs Cleopatra's solution oj pearls. 

(42) See the address of the Assembly of L8th Octobi r, 1694, which com- 
mends, in tin- rerj highest terms, hi- efforts in the cause of tin: gospel and 
the Protestant religion, in the instruction of youth by the establishment of 
free schools, and his care fur the security and d< fence "l tin- province; — that 
of 2d October, 1 696, equally complimentary, which remarks, "II. • hath 
always tr< •• I us with justice, i i much his own as our good;" 
and that, at tin- peri- of 12th November, 1698, signed b] 
councillors, bur rincial court, members of thi 

and jurors, thanks for thi many services he had render- 

ed the colony whilst gOTernor. / I F, 791, 921 and 

1029. Sec also the preamble t i hap. 17. 



264 HISTORY OF THE ROYAL [Hist. Yiew. 

already commenced between them and the English colonies. 
The principal resistance to their encroachments, which the 
French had hitherto encountered, arose from the implacable hos- 
tility of the Five Nations ; whose position, on the borders of New 
York, had materially contributed to its defence. Peculiarly ex- 
posed by its situation, as the frontier colony, to the attacks of the 
French, that province had hitherto relied, in a great measure, 
upon its own resources; and the other colonies, whilst they 
reaped the benefits of their efforts, were exempt from the perils 
and burdens of their defence. The French war, ensuing upon 
the accession of king William, rendered a new system of 
defence necessary. The government of New York now began 
to look to the sister colonies, for assistance in repelling the ag- 
gressions of the common enemy. In April, 1692, she addressed 
to the government of Maryland, a most earnest solicitation for 
her aid in keeping up the garrison of Albany, which (says she) 
is the frontier garrison of all the English plantations on the main 
of America, and by the loss of which we must lose our Indians 
also. (42) It was soon followed by a letter from the king, en- 
joining it upon Maryland, in general terms, to give assistance to 
New York ; (43) but these general requisitions being attended 
with little effect, the king transmitted new instructions to ^the 
colonies in 1694, in which the quota of assistance, to be furnished 
by each colony, was particularly defined. (44) Thus began, in 
Maryland, the system of crown requisitions, which was ever after- 
wards kept up in the general operations of the colonies against 
the common enemy. The plan of their united efforts being con- 
certed, the king's instructions to the colonies allotted to each 
the quota of men and money to be furnished by it for the common 
enterprise. These requisitions, although intended to be impera- 
tive, were not always regarded as such. They had to pass 
through the ordeal of the colonial Assemblies, upon whom alone 
it depended to give them energy, and by whom they were car- 
ried into effect, when it suited the convenience of their colonies. 
In Maryland, they were frequently disregarded both at this and 
other periods of her colonial history. To narrate particularly 

(42) Council Proceedings, Liber F F, 613 and 673. 

(43) Same Liber, F F, 791. 

(44) Same Liber, H D. part 2d, 138. 



Chap. III.] GOVERNMENT OF MARYLAND. 265 

all the transactions of this administration in connexion with 
them, down to the treaty of Ryswick in 1697, would be an use- 
less task. (46) They were received with a very ill grace by 
tin 1 Assembly of Maryland, at this period : and obedience 
to them was generally declined, upon the plea of inability to 
incur more than the expense of their own frontier defences. 
Some of these transactions present an amusing contrast between 
the past and present condition of Maryland and New York : (16) 
and the general results of the system to which they belonged, 
arc still interesting in the colonial history. This system of re- 
quisitions, imperfect as its obligations were, in some measure 

(4.">) The various proceedings of the government of Maryland, in relation 
to these requisitions, will be seen in Council Proceedings, Lib. FF, G13, G73, 
791, 302, -31 and 893. Liber H D, No. 2, 138, 144, 148, 191, 251,276, 
3U7 and 372. 

(4G) The calls made upon Maryland for her assistance were exceedingly 
harassing to her Assemblies. The quota required of her at the session of Oc- 
tober, 1G95, was £ 133 ; but the Assembly represented the province as utterly 
unable to meet the requisition, and resolved to petition the crown for relief 
from it. In Hub exigency, the governor came forward and offered to advance 
the money. Hi-, offer was gladly accepted, and the money transmitted. 
About that period, Thomas Tasker, the treasurer of Maryland, was sent by 
governor Nicholson, on an embassy to New York, with a small sum of money 
for her relief. Tasker was instructed to represent the difficulty with which 
that sum was raised, and the utter inability of the colony to meet any further 
demands upon her ; and to desire the government of New York to send com- 
missioners to Maryland, by whom they might be satisfied as to her distressed 
condition. The following is the Council record of the result of Mr. Taskcr's 
embassy : 

11 His Excellency was pleased to ask Captain Tasker, what answer the 
Council of New Pork government gave concerning sending some person from 
thence to be at our assemblies here : to which he says, it was answered to 
him that it was too expensive to send one, for that tin ir la^t messenger had 
cost their: ( ng. Thereupon the Hon. Col. Nicholas Green- 

berry, then present, informed his Excellency and the Board, that the said 
■• nger was at no expenses during the time he staid on this side the bay, 
where his business lay; but docs withal observe, as also 
several others of tin of the council, that he kepi drunkening up 

and down, and was of ?ery ill and rude behaviour during bis Btay here: and 

that it was no wonder for him to bring them in such an aeeoiint of expenses, 

consult ri n j; tin eh • mdsi Brwgh, ni Mho Caatie, leart." Coon* 

ell Proceedings of 4th October, 1G95, PF, 831. 

:;i 



2G0 HISTORY OF THE ROYAL [Hist. View 

imparled to the English colonies the character of a confederacy. 
It familiarized them to the advantages and necessity of union. 
It led them to regard each other, not as rival dependencies, but 
as sister colonies. It promoted an intercourse between their in- 
habitants, which eminently tended to render them one people 
in manners and habits of thinking, although living under distinct 
governments. Above all, it taught them to rely upon their own 
energies for protection, and trained them to all the expedients 
of self defence. 

This administration is also remarkable for the establishment of 
a public post. A general post-office establishment for the colo- 
Pubiic post csta- nies > was instituted by the English government in 
Wished. J7J0 . k c f orc w hich period, it is generally believed 

to have been unknown in them. A public post was, however, 
established in Maryland, at the instance of governor Nicholson, 
as early as 1GU5. The post route established, extended from a 
point on the Potomac, through Annapolis, to Philadelphia. A 
number of stations, on the route, were designated as places for 
the receipt or deposit of letters. (47) The postman was bound 
to travel the route eight times a year; and it was his duty to 
carry all public messages, and to bring and leave all packets and 
letters for the inhabitants of the province, according to their di- 
rection ; for which services, he was allowed, out of the public 
money, an annual salary of £oQ sterling. The system was de- 
fective, because it was not made to defray its own expenses by a 
charge for conveyance ; but it was kept up until 1698, when, by 
the death of the postman originally employed, it was suffered to 
drop, and does not appear to have been afterwards revived. (48) 

The character and influence of the succeeding administra- 
tions of governors Blackiston, Seymour, and Hart, were in genc- 

(47) The route designated began " at Newton's Point, upon Wicomico 
river," and ran thence " to Allen's mill, thence to Benedict Leonard Town, 
thence over Patuxcnt river to George Lingan's, thence to Larkin's, thence to 
South river, thence to Annapolis, thence to Kent, thence to Williamstadt, 
thence to Daniel Toafs's, thence to Adam Peterson's, theuce to New Castle, 
and thence to Philadelphia." 

(48) Proceedings of Upper House for 1695, Liber FF, 821 ; Council Pro- 
ceedings of 1695, Liber HD, part 2d, 174 ; of 1698, Liber X, 44. 



Cliap. III-l GOVERNMENT OF MARYLAND. 2f>7 

Adninistrationa ra '' favourable to the liberties and prosperityof the 
Wackkton^Sey! colony. Blackiston, who qualified as its governor 

mour, and' Hart. on tho O.l „f J ;, „„;, ,-y. 1698, (old style,) acted as 

snch until near the close of the year 171)1 ; when, in conse- 
quence of the feeble Btate of his health, he was. at his own soli- 
citation, permitted to return to England. He was a man of 
honor and integrity, and enjoyed in a high degree the affections 
and confidence of the colony. The strongest evidence of their 
undiminished respect for his character, is found in the fact, that 
after his return to England, he was employed by the Assembly as 
the agent of the colony, to protect its interests with the crown 
and parliament. (49) Upon his departure, the administration of 
the government devolved upon Colonel Edward Lloyd, the presi- 
dent of the council ; in whose hands it remained, until the arri- 
val of governor Seymour, in the spring of 1701. (50) Not- 
withstanding the difference between this governor and the assem- 
bly about the chartering of Annapolis, the transactions and ac- 
counts of that period represent him to us as an estimable man, 
whose general conduct in the province gave satisfaction. By 
his death, in 1?()!>. the government again devolved upon Colonel 
Lloyd, by whom it was administered until the arrival of gover- 
nor Hart, in 17 I 1. 

The history of the foreign relations of the province, during 

these administrations, presents nothing of moment in connexion 

with the history of the government, but the at- 

Attempta, daring . , ° 

d .viiiihii- tempts which were made in England to break down 

mtiona, to <le- 

■taoy the Chanel tlif charier and proprietary governments. These il- 

governm 

Instrate the constant policy of England with refer- 
ence to the colonies; which was probably quickened at this pe- 
riod, inconsequence of the occasional disregard of the king's re- 
quisitions by the colonial Assemblies. The more subtle i le of 

destroying their liberties, bj i of parliamentary taxation, 

had not yel been devised. It was reserved lor the memorable 
ministry of Grenville. At that early period, the direct destruc- 
tion of the charters was the clumsy expedient lor getting rid of 

their checks upon the crown. It i> but justice, however, to re- 
mark, that throughout every period, of their history, the colonies 

i i; 14, Liber W H J, 240 

: mpin in America, rol. l-t. 334 



268 HISTORY OF THE ROYAL [Hist. View. 

held in their bosoms some treacherous friends ; who, like Mil- 
ton's evil spirit, were ever whispering into the ear of the minis- 
try, the promptings of their own ambition or malignity against 
colonial independence. Representing the colonists, either as 
animated by factious opposition, or as aiming at independence ; 
and diminishing, to the view of the mother government, the ha- 
zard of an attempt upon their liberties ; these Dolons effected more 
to the prejudice of the colonies, than a host of open enemies. 
At the period of which we are treating, the colonies found an ene- 
my of this description in the person of governor Nicholson. He 
had been translated from the government of Maryland to that of 
Virginia. One of his earliest efforts, after his removal to the latter, 
was to press upon its Assembly the adoption of the quota sys- 
tem for the defence of New York, enjoined by the king's re- 
quisitions of 1694-95. Although backed by fresh injunctions 
from the king, he was foiled by the firmness of that Assembly ; 
which still resolutely declined its adoption, alleging, in justifica- 
tion, "that no fort which was built in New York, could in the 
least avail to the defence and security of Virginia; which might 
be invaded by either the French or Indians, without coming 
within one hundred miles of any such fort." (51) Enraged at his 
disappointment, he now transmitted several memorials to the 
king, including one from Quarry, his satellite, and a member of 
his council. Quarry's memorial represented, " that the people 
of Virginia were numerous and rich, and full of republican no- 
tions and principles, which ought to be corrected and lowered 
in time; and that then or never was the time, to maintain the 
queen's prerogative, and put a stop to those wrong, pernicious 
notions, which were improving daily, not only in Virginia, but 
in all her majesty's other governments. A frown now, from her 
majesty, could do more than an army hereafter." And in an- 
other memorial, which is said to have been their joint produc- 
tion, the direct proposition was submitted, "that all the English 
colonies of North America should be reduced under one govern- 
ment, and one viceroy ; and that a standing army he there kept up 
on foot to subdue the queen's enemies." (52) Such was the char- 

(51) First British Empire in America, 399 ; 2d Burke's Virginia, 322. 

(52) 2d Burke's Virginia, 326 and 327. 



Chap. III. J GOVERNMENT OF MARYLAND. 269 

actcr of tlio representations, which these minions of arbitrary 
power, in the colonies, wore from time to time submitting to tin- 
crown. Under such influences, a bill was brought into parlia- 
ment, in 1701, proposing the destruction of the charters of 
M issachnsetts, New Hampshire, Rhode Island, Connecticut, 
East and West Jersey, Pennsylvania, Maryland, and the Ba- 
li una Islands ; and the conversion of their governments into 
unchartered royal governments. The preamble to this bill as- 
aigns as the reason of the measure, "that the severing of such 
power and authority from the crown had been found, by experi- 
ence, prejudicial and repugnant to the trade of England, to the 
welfare of his majesty's other plantations in America, and to his 
majesty's revenue arising from the customs, by reason of many 
of these plantations, and those in authority there under them, 
by encouraging and countenancing pirates and unlawful traders, 
and otherwise." (53) The true reason being of too delicate a 
nature to be avowed, here was the usual ad captandum appeal to 
the advantages of English trade. The agents of some of the 
colonics were heard before the House of Lords in opposition to 
this bill, and it was ultimately defeated : but there is reason 
to believe that it had the sanction of the crown. In July, 170 I, 
a letter was addressed by the lords commissioners of trade to the 
government of Maryland ; which was manifestly connected with 
the designs of this bill, and was intended to promote them, by 
the accumulation of objections to the proprietary governments. 
It instructed 1 1 j < - governor to collect, and transmit speedily to 
tin in. "the besl information in relation to the ill conduct of pro- 
prietary governments, especially of Maryland, when under that 
mini iii : and of the adjacent proprietary governments of 
Pennsylvania and the Jerseys." This letter was laid by the Go- 
vernor before the council, in November, L701. The feeble ob- 
jections to the antecedent proprietary government of Maryland, 
which this <-all elicited, form the verj besl answer to the alleged 
ilution. From the character and inclinations of 
the representation now made by the council, it is manifest, thai if 
tint gov< mine hi bad been characterized by the acts.of oppression 
ascribed to it by the Protestant A uch act would have 

(53) Pitkin's United States, vol. 1st, p. 131. 



270 HISTORY OF THE ROYAL [Hist. View. 

been presented in high relief. Yet the only objections which 
it alleges against the former government are, "that under it there 
was no oath of allegiance to the crown, but only the oaths of 
office and that of fidelity to the proprietary ; that the laws of 
the province were not transmitted to the king for allowance ; 
that there were no appeals to England from the decisions of 
its courts, and that the judgment of the upper house of As- 
sembly was final in all causes ; that two of .his Majesty's col- 
lectors at Patuxent, Mr. Rousby and Mr. Pain, were mur- 
dered in the execution of their office, but they will not say 
that the same was properly chargeable upon the government ; 
and that the tonnage duty of lid. per ton, being in its origin 
a fort duty, did properly belong to the province." Their re- 
plies, as to Pennsylvania and the Jerseys, manifest no great 
decrree of good will towards those governments. The former, 
they represent as having been the harbor of fugitive seamen 
and debtors, and runaway servants ; and as having been much 
resorted to of late years by pirates. " As to the Jerseys, (say 
they,) having no commerce with them, they being remote, we 
can only say, that they have been a receptacle of pirates with 
their effects, and have given encouragement to illegal traders 
running their goods there." (54) 

It must not, however, be imagined, from the character of 
these answers, that the people of Maryland were favorable to 
opposition of the design of merging their distinct colonial go- 

thc colony to the . , . , . . . j . 

scheme of a gen- vernment in one having general supenntendance 
coloniesTnW. over the colonies. Their wishes did not extend 
beyond the continuance of their separate royal government; 
and they were particularly averse, at that period, to schemes for 
the union of the colonies under one government. At the ses- 
sion of 1704, a formal remonstrance was drawn up under the 
directions of the Assembly, "suggesting such reasons (says the 
record,) as may induce her Majesty to put a stop to all proceed- 
ings levelled against the constitution of this province by the 
governor of New York." (55) What these proceedings were, 
the histories of New York, within our reach, do not inform us. 

(54) Sec this representation of the Council, in Council Proceedings of 
29th November, 1701, Liber X, 274. 

(55) Upper House Journals from 1699 to 1714—301. 



Chap. III.] GOVERNMENT OF MARYLAND. 271 

It seems probable, however, that this remonstrance had reference 
to the plan of union amongst the colonies, which is said to have 
been projected shortly before that period, and under which there 
was to be a general congress, consisting of two deputies from each 
Colony, having power to adjust all (inferences amongst the colo- 
nic-, to determine and assess the quotas to be contributed by 
each for the general defence, to bring to justice fugitive debtors 
and criminals, and to protect from injury the commerce of each 
colony. At the head of this government was to be placed a 
royal commissioner, residing at New York, as the governor of that 
colony; who was to be ex ollicio president of the congress, 
and the commander in chief of the colonial forces. (50) The effec- 
tuation of such a scheme, at that early period, might have been 
attended with most disastrous results to the colonies. It was 
not, however, seriously urged ; and the Assembly, or Council 
transactions, do not again allude to any such project during this 
period. 

The design for the destruction of the charter and proprietary 
governments was again revived, in parliament, at the session of 
171"). immediately after the restoration of the province to Lord 
Baltimore. It required all the energies of the proprietaries and 
New attack up- colonial Assemblies, and their respective agents, to 

on tlie charters , . . 

in 1715. defeat this attempt. Petitions against the measure 

were preferred from all the colonies to be affected by it. Amongst 
these was one preferred, on behalf of the infant Lord Baltimore, 
by his guardians : which entreated that his province might be ex- 
Cepted from ii, inasmuch as he and his brothers and sisters, who 
had lately become Protestants, depended for then- Bupporl upon 
the revenue of the province, which would he taken away by this 
measure, ami was estimated by them at £3000 per annum. (57) 
The united efforts of the colonic- at length occasioned the aban- 
donment of the hill; and the newly restored proprietary of Ma- 
ryland was admitted to the full enjoymenl of his government, 
which subsisted from tin- period until the commencement of the 
American revolution, without further interruption. 

(5C) Sec the details of thi , I | Pitkin'i United Slates, 141. 

10, whit tat • Hi. iubatance of I 
petition preferred by the colonii - 



072 HISTORY OF THE ROYAL [Hist. View. 

The information furnished hy our records as to the popula- 
tion and trade of the colony during this era, is meagre and im- 
sourccs of infor- perfect. Their defects would most probahly be sup- 
staiistics of the plied by the records of the Plantation Office in En- 
thise'ra. gland. An admirable improvement in the royal ad- 

ministration or supervision of the colonies, was introduced in the 
year 1690, by the establishment of a standing council for them; 
the members of which were styled " The Lords Commissioners 
for Trade and Plantations." For many years before the institu- 
tion of that board, all subjects having relation to the colonies, 
which were brought under the consideration of the English gov- 
vernment, were referred to special committees of the privy coun- 
cil, whose duties did not extend beyond the subjects particu- 
larly referred. But the commercial and manufacturing inter- 
ests of the mother country had now become too important to be 
thus administered. Hence this permanent Board of Commis- 
sioners, which was invested with powers and duties of a most ex- 
tensive character, with reference not only to the colonial inter- 
ests, but also to the commerce and manufactures of England it- 
self. It was made a part of its duty to keep up a correspondence 
with the colonial governments, and to obtain from them, from 
time to time, full information as to the trade and general condi- 
tion of their colonies. (58) In 1697, a series of enquiries were 
addressed by this board to the government of Maryland, from the 
replies to which we collect nearly all the authentic information ' 
we possess as to its statistical condition during this period. Ano- ; 
ther set of instructions were transmitted by it, in 1699, to gov- ' 
crnor Blackiston, directing him to return to it a full account of 
the population, designating the number of men, women and chil- 
dren ; and distinguishing them, as free, servants, or slaves ; and 
also to have a general survey made of the province, and of each 
county ; and to cause an exact map of these to be drawn and 
transmitted to it. We are unable to say whether these instruc- 
tions were carried into effect. The existing records of the 
province furnish no evidence that they were, and perhaps they 
were not attended to, in consequence of the departure of govern- 
or Blackistone for England. An accurate map of Maryland, made 

(58) Anderson's Commerce, 1C8 and 16!). Preface to Chalmer's collec- 
tion of opinions, page 7. 



Chap. II I. j GOVERNMENT OF MARYLAND. 07.J 

at that early period, is now a desideratum •' and the propriety of so- 
liciting an examination of the plantation records, for the purpose 
9/ ascertaining if it were ever completed, is humbly submitted to 
the consideration of its Assembly. 

The population of the colony was not much increased during 
the royal government. In 1689, it contained about twenty-five 
its population, thousand inhabitants ; and in 1710, only thirty thou- 
sand. (59) Immigration, the principal cause of the rapid in- 
crease in the population of the colony during the preceding era, 
had in a great degree ceased. "But k\v or no families have 
come into the province to reside, of late years, (says the report 
of the Assembly, in 1(597.) Some single persons, mostly wo- 
men, are of late come from England or Ireland, in the quality 
of servants, in all about sixty souls. Indeed, the low price 
which the planter hath of late been constrained to accept from 
the merchant, hath obliged many here, finding their industry 
would not supply their necessities, to try their fortunes else- 
where, to the apparent and considerable diminution of the num- 
ber of our inhabitants, compared with preceding years and lists." 
(GO) The population had never been much increased by emi- 
grants from other colonies; and the principal causes which had 
hitherto induced emigration from England, had now ceased to 
operate. Under the proprietary government, it was a city of re- 
fuge to all who sought shelter from civil or religious oppression. 
The Catholic here found peace and security; and the non-conform- 
ing Protestant came hither, to enjoy, under a Catholic ruler, the 
toleration denied to him by his Protestant brethren. The enemy 
of arbitrary prerogative found il here in subjection to the laws; 
and the friend of civil liberty discovered, in the organization and 
powers of the provincial Assembly, the essential features of a e 
remanent based upon the people's will. In these respects, n 
then presented a striking contrast, not only t<> the condition of 
the mother country, bu1 also to that of most of the Bister colonies , 
but the contrast bad now ceased. Maryland was now under ;| 
royal government; and it- people Bubjecl to the restrictions of 
in established church. To the Catholic, it offered nothing but 

-ii Empire in America, toI. I, p. 341. 
(60) Report of 8th June, 1697, bj the General kssemblj i" the Commis- 
■iooen of Trade, in I ppei House Proceedings, Lib« c 1 1 942 <i«\ 944. 
36 



274 HISTORY OF THE ROYAL [Hist. View. 

disqualification and penalties ; and to the non-conforming Protes- 
tant, it now gave no privileges, which he could not enjoy in Eng- 
land, under the system of Protestant toleration established by 
the revolution. At the same time, many of the temporal induce- 
ments to settlers were removed. Lands were no longer given 
as a bounty to emigrants ; and the controversies about his land 
rights, in which the proprietary was involved for several years 
after the revolution, rendered it difficult to obtain grants from him 
upon acceptable terms. During the first years of the royal go- 
vernment, the husbandry of the province appears to have been 
in a distressed condition, but little calculated to invite emigrants. 
" The trade of this province, (says the report of the Assembly in 
1697,) ebbs and flows according to the rise or fall of tobacco in 
the market of England ; but yet it is manifest and apparent that, 
universally, less crops are made of late than formerly; that is to 
say, of tobacco: for that the most and best land for that purpose, 
is cleared and now worn out, which indeed thereby becomes 
better for tillage ; and the late grievous losses sustained by the 
death of cattle, hath sufficiently cautioned the inhabitants, by 
tillage to make better provision against the late unusual hard 
winter, and to plant less tobacco; and especially the country is 
in want of servants and negroes." (01) Hence the settlements 
were not much extended during this era; and the only new 
counties erected, were Prince George's, in 1695, and Queen 
Anne's, in 1706. 

The pursuits of the colony underwent no change. Tobacco 
was still its staple, and almost the only article produced for ex- 
its trade and portation. Planting tobacco was the general pur- 
raJiy!' 8e " e * suit ; and besides the planters, there were some 
carpenters, coopers, and a few other artisans ; the whole num- 
ber of whom is estimated, by the report of 1697, as only consti- 
tuting about the one sixtieth of the whole population. Manu- 

(61) The years 1694 and 1695 are described in the provincial records as 
years of unusual scarcity and suffering in the colony, from the effects of 
which, upon its husbandry, it did not recover for several years afterwards. 
A regular census was taken of the cattle and hogs, which had perished 
during these two seasons, from which it appeared that the number of cattle 
lost during the time, was 25,429, and of hogs 62,373. Council Proceedings, 
Liber H. P, 2, p. 2d, 303. 



Chap. HI.] GOVERNMENT OF MARYLAND. 275 

factories were Btill unknown in the province ; and the colonists 
depended entirely upon England for the most necessary articles 
of consumption. In a few families, coarse clothing was manu- 
factured, out of the wool of the province, for the use of their 
servants ; and in Somerset and Dorchester, some attempts were 
made by a few persons, at a period when there was an extreme 
difficulty in procuring English goods, to manufacture linen and 
woollen cloths ; " which they were reduced to (says the report of 
1697,) by absolute necessity, and without which many persons 
had perished; and this house believes, that when the like ne- 
<■' — i t y falls on them or any other of this province, the like pre- 
servation will be endeavored." (62) How cautiously they vindi- 
cated their feeble attempts at manufacturing the very necessaries 
of life, to escape the censure of the all-grasping spirit of England, 
ever jealous of every thing that tended, in the least degree, 
to weaken the entire dependence of her colonies, or to diminish 
the gains of her monopolies. There are no data fiom which 
we can collect an accurate estimate of the value of the exports 
of the colony. Tobacco was the only export of much value. 
To use the forcible expression of another, "it was their meat, 
drink, clothing and money." (63) The trade in this article was 
carried on almost exclusively with England. The trade else- 
where was very inconsiderable; and that consisted in the trade 
to the Wesl Indies, in beef, pork, pipe staves, timber, and 
small quantities of tobacco ; and in the trade with the New 
Englanders, for rum, molasses, fish, and wooden wares; for 
the tratlic in which latter article the New Englanders were 
conspicuous even at that early period. The shipping of the co- 
lony was very inconsiderable. The trade with England was car- 
ried on entirely in English ships; and the trade with the West 
Indies principally in New England vessels. The military de- 
fences of the province consisted entirely in its militia; and of 

(C2) There is little or no woolen manufacture, (says the author of the 

Briti-.li Empire in America, written about th>- year L709,) followed by any 

of the inhabitants, except what is done in Son* net county "—Vol. 1st, 343. 

It would seem from this, thai the attempt in Somerset, had partially suc- 

: in establishing the manufacture. 

(63) 1st British Empire, 343. 



276 HISTORY OF THE, &c. [Hist. View. 

naval power it was utterly destitute, there not being a single 
vessel in the employ of the government. (64) 

From this general view of the statistical condition of the co- 
lony, it is evident that its power and resources were but little in- 
creased during this era. It was still a feeble and dependent 
settlement, trammelled in its trade, limited in its resources, and 
humble in its aims. The events of this era were unfavorable, 
both to the increase of its population, and its extension over 
the surface of the province. Hence its inhabitants still clustered 
along the bay and the mouths of its tributaries ; and a large and 
fertile portion of its territory was yet unexplored. Yet it pos- 
sessed all the elements of power and wealth. It enjoyed a free 
government. It contained an industrious, energetic, and self- 
relying population. It presented an extensive and unexhausted 
territory, to;tempt the enterprise, and diversify the pursuits of its 
people. Untoward circumstances might retard its progress; 
but ultimate prosperity was assured to a colony thus situated. 
To the succeeding era it belonged, to call these latent energies 
into action ; and to develope strength and resources, not only 
equal to her own protection, but even bidding proud defiance to 
the oppressions of the parent. 

(64) These details, as to the trade and pursuits of the colony, are collect- 
ed from the report of the governor and council to the commissioners of trade, 
in 1697, (which see in Council Proceedings, Liber F F, 942 to 947 :) and "the 
British Empire in America." 



CHAPTER IV. 



HISTORY OF THE GOVERNMENT OF MARYLAND, FROM THE 
RESTORATION TO THE TREATY OF PARIS. 

From an examination of the causes and character of the 
Protestant revolution in Maryland, as developed in the preceding 
chapter, it is manifest, that as far as the proprietary \v;is personally 
Suspension of connected with the transactions of that period, his 
g'overnmenfmft government had fallen without a crime. The cha-^ 
m-iKalimin'Ltrii 1 - racter of Charles Calvert, as displayed in his wise 
and virtuous administration of the province, for 
many years anterior to that revolution, is of itself sufficient 
for his vindication, against any suspicion of hostility to the civil 
or religions liberties of the people, predicated either upon the 
occurrence of the revolution, or the vague and unsupported accu- 
sations of " the Associators." It has been seen also, that such 
a suspicion is at war, with all the evidences of his conduct, and 
the inferences as to his motives, which can be collected from the 
recorded transactions of the colony itself, before and after that 
revolution. The addresses of the provincial Assemblies, whilst 
the colony was yet under his government, breathe nothing but 
respect for his character, and gratitude lor his administration. 
Tin- revolution accomplished, and the royal government fully 
established, the character of his administration became again and 
again the subject of investigation. His land rights, and private 
revenues derived From the province, win- regarded as public 
grievances: yet we look in vain through the spirited transactions 
of the Assemblies, under the new government, in opposition to 
these, even for charges of Baal-administration, to sustain such a 
suspicion. At a later period, it became the interest of the 
erowii, in its attacks upon the proprietary governments general!) 
to accumulate objections to them, derivt d from the • xperiena si 



278 HISTORY FROM THE RESTORATION [Hist. View. 

their operation. The government of Maryland was in the hands 
of men, many of whom were prominent actors in the transactions 
of the revolution, and were yet imbued with the religious and 
political excitements of that period. To such as these was 
the appeal made, for the experience of Maryland ; and they 
were invited to the attack, by the restricted direction to report 
merely the ill conduct of the proprietaries. Interest and incli- 
nation sustained this invitation ; and the memorials of abused 
power, if they ever existed, were yet fresh around them ; yet 
their reply to the inquiries of the commissioners of trade, does 
not even insinuate the charge of proprietary oppression. 

The true cause of the long continued suspension of the pro- 
prietary government, is found in the single fact, that the proprie- 
tary was a Catholic. The inhabitants of Maryland being princi- 
True cause of P a 'Iy Protestants, the inclinations of the colony con- 
its suspension. curre( j with the obvious policy of the crown, in 
establishing and sustaining the royal government. The repeat- 
ed efforts to re-establish the pretensions of the deposed James and 
his more chivalrous son to the English throne, kept the minds of 
the English people in a state of continual apprehension, as to the 
security of the Protestant succession. Unfortunately for the pro- 
fessors of the Catholic religion, by the force of circumstances 
which it is not necessary to detail, their religious persuasions 
became identified, in the public mind, with opposition to the 
principles of the revolution. Their political disfranchisement 
was the consequence. Charles Calvert, the deposed proprietary, 
shared the common fate of his Catholic brethren. Sustained and 
protected by the crown in the enjoyment of his mere private 
rights, the general jealousy of Catholic power denied him the 
government of the province. 

Perceiving the full force of this cause of exclusion, which was 
ffaininjT fresh view from the renewed efforts of the Pretender, the 
Restoration of proprietary never returned to the province, and 
the government, abandoned all hopes of the restoration of the pro- 
prietary government in his own person. He submitted quietly 
to his own loss of power, for the sake of the religion in which 
he had grown up. For his children, his feelings prescribed a dif- 
ferent course. His interests in the province would be their prin- 
cipal patrimony ; and these were in continual jeopardy, whilst 



Chap. IV.] TO THE TREATY OF PARIS. 079 

they were divorced from the powers of government. For his 
family, he saw nothing in prospect, but disfranchisement, and 
perhaps ruin, in adherence to a proscribed faith : and yielding 
to the anxieties of a parent, he induced his son and heir apparent, 
Benedict Leonard Calvert, to embrace the doctrines of the esta- 
blished church. By his death, on the 20th of February, 1714, 
(old style) at the advanced age of eighty-four, the succession to his 
estates in the province was cast upon his son, who was then a 
member of the English parliament. Benedict Leonard Cahcrl 
survived his father scarcely long enongh to be formally recog- 
nized as proprietary ; and by his death, on the 16th of April, 
1715, the title to the province devolved upon his infant son, 
Charles Calvert. This son, as well as the other children of the 
late proprietary, after the admission of the latter into the Protes- 
tant church, were educated in the doctrines of the established 
religion ; and therefore the causes for the suspension of the pro- 
prietary government had now ceased to exist. The claims of 
the Baltimore family were now fully acknowledged, and sustain- 
ed by George I., the new monarch of England ; by whom the 
proprietary government was restored, in May, 1715, in the per- 
son of the infant proprietary. The administration of it was im- 
mediately assumed, in his name, by his guardian, lord Guilford; 
and a commission for the office of governor issued, under the 
joint names of the proprietary and his guardian, to John Hart, 
the late royal governor of the province. 

The restoration of the proprietary government, was not mark- 
ed either by open discontent, or extraordinary rejoicing, on the 
iu effect* upon P art °f tnc P co p'c of the province. An interval of 
u>e colony. twenty-six years had separated them from that go- 

vernment. The causes of the excitement, which occasioned 
its overthrow, had in a great degree subsided; but with these 
had also pasted away, many of the recollections which endeared 
it and would have welcomed its return. The proprietaries, who 
had administered that government, were gone; and it was now 
restored iri the person ofa youth and a Btranger, who had yet to 
win the personal attachment of his people. Upon a govern- 
ment of laws, such as that of Maryland, a mere change of its 
head has but tittle effeOt. The only apprehensions, even in the 
minds of the more timid, related to the security of the establish- 



280 HISTORY FROM THE RESTORATION [Hist. View. 

ed religion; and these did not look to immediate danger, inas- 
much as the new proprietary was an open professor of that reli- 
gion. Yet these apprehensions existed in the minds of some, 
and were now seized upon, to justify the passage of acts, giving 
to the new government a character more exclusively Protestant 
even than that of the royal government which preceded it. 

A test oath, requiring the abjuration of the Pretender's claims, 
had been introduced in 1704, which was kept up during the con- 
Exciusive cha- tinuance of the royal government. (1) But it was 
by CLe new en Ves! reserved for the period of the restoration, to esta- 
oaths. blish a test-oath, requiring not only the abju- 

ration of the political claims of the Pretender, but also the re- 
nunciation of some of the essential doctrines of the Catholic 
church. The succession to the English throne, as regulated by 
parliament, having passed into the Brunswick family in the per- 
son of George I., new test oaths were prescribed in England for 
the further security of the Protestant succession ; (2) which, how- 
ever well adapted to the condition of England, were not de- 
manded by the circumstances of the colony, or the feelings and 
power of the Catholic interest within it. The restoration of the 
proprietary, who was as yet a novitiate in the Protestant religion, 
was, however, the signal for alarm in the province. The predis- 
position to this was increased, immediately after the restoration, 
by the silly act of a few persons in drinking the health of the 
Pretender, conduct which savored more of folly than of treason. 
The apprehension of a plot for the establishment of the Preten- 
der's power in the colony, was ridiculous ; and the apprehension 
of danger from it, still more so. It was, however, enough to 
induce the Assembly of the province to follow the example of 
the English parliament. At the first session of Assembly held 
under the restored government, an act was passed, which intro- 
duced the qualifying test oaths of England in all their rigor, and 
effectually excluded the Catholics from all participation in the 
government. All persons, holding any office or place of public 
trust within the province, were, by this act, required to take 
certain oaths, called the oaths of allegiance, abhorrency, and ab- 

(1) Act of April, 1704, chap. 11, which was superseded by the act of 1715, 
chap. 30. 

(2) Statute 1st George 1st. chap. 13. 



Chap. IV.] TO THE TREATY OF PARIS. 281 

juration : which substantially consisted, in acknowledging king 
George as the supreme head both of church and state, in deny- 
ing the righl of any foreign power or prelate to exercise any spi- 
ritual jurisdiction within the English dominions, and in abjuring 
the claims of the Pretender ; and they were also required to de- 
clan- their disbelief of the doctrine of transubstantiation. None 
were capable of holding ollices or places of trust, who refused 
to take these tests; and in case of such refusal, if the person re- 
fusing attempted to hold or exercise any such office, his commis- 
sion or appointment was declared void, and he himself subjected 
to severe penalties. The government of Maryland thus became, 
and continued until the revolution, exclusively Protestant ; and 
the Catholics were taxed to sustain a religion and a government, 
to which they were emphatically strangers. (3) 

From the re-establishment of the proprietary government until 
the treaty of Paris, its internal administration presents but few 
General results events, which interest by their details, or instruct by 
ry Bdmintetra- their results. Apart from the mere wars of words 
era! ' " between the provincial assemblies and the gover- 

nors, or between the two houses of Assembly, about their respec- 
tive privileges and powers, or the constitutional rights of the pro- 
vince, it was a period of almost unbroken tranquillity. The 
laws and institutions of the colony now acquired a settled and 

(3) Act of 171G, chap. 5th. This system of disqualifications was carried 
still further by the act of 1718, chap. 1st. All professing Catholics were 
rendered incapable of voting, unless they qualified themselves, by taking the 
several test-oaths, and making the declaration, prescribed by the act of 171G ; 
and all judges of elections were empowered to tender these oaths and de- 
claration, to "any person suspected to be a Papist or popishly inclined ;" and 
upon his refusal thus to qualify, they might reject his vote. These were the 
ligul disqualifications of the Catholics ; but they fell short of the actual 
oppressions practised upon them during many periods of this era. Whcu 
laws degrade, individuals learn to practise wanton outrage ; the former stig- 
matize, the latter catch it^ spirit, and make its example an excuse for oppres- 
I -'>nal animosity of the Protestants :i^:»in-i the Catholics 

of Maryland, wai ii"i carried to such an extent, that, as we are in- 

Conned, tin' latti i win ev< ii i Kcluded from Boeial intercourse n ith the for- 
in< r, were i ■ ■ • ' permitb d to walk in front ol Ihi State House, and were actual 
|j obliged to wear iwords i-i then personal protection.- Life of Charh 

-lb vol., J lu 
»(5 



882 HISTORY FROM THE RESTORATION [Hist. View. 

permanent character, and a degree of consistence which had 
hitherto been unknown in their history. The reader, who has 
had occasion to examine the legislation of Maryland before this 
period, must have remarked its peculiarly fluctuating character. 
All was temporary, all was subjected to repeated changes. This 
state of the provincial legislation was, in some measure, the con- 
sequence of that continual variation in the condition and pur- 
suits of a colony, which always marks the first years of its esta- 
blishment. Yet even this is not sufficient to account wholly for 
it. There was a general disinclination, in Maryland, to the 
enactment of permanent laws. No change could be made in 
such laws, but by some new act of legislation requiring the pro- 
prietary's assent ; and the Assemblies were always unwilling to 
render themselves dependent upon his will, for relief from a law, 
which might be found, by experience, to be inconvenient or op- 
pressive. They preferred temporary laws, which would expire 
by their own limitation, and might be re-enacted if found saluta- 
ry. Their legislation thus assumed the character of a- system of 
expedients. As to revenue bills, this discreet jealousy was che- 
rished down to the latest period of the colonial government; but 
the legislation upon mere private rights and remedies, now ac- 
quired a more permanent character. The last Assembly which 
was held under the royal government, the Assembly of 1715, is as 
conspicuous in our statute book, even at this day, as " the bless- 
ed parliament" in that of England.. A body of permanent laws 
was then adopted, which, for their comprehensiveness and ar- 
rangement, are almost entitled to the name of " a code." They 
formed the substratum of the statute law of the province, even 
down to the revolution ; and the subsequent legislation of the 
colony effected no very material alterations in the system of 
general law then established. Several of the important statutes 
of that session are in force at this day. The history of the seve- 
ral provincial offices, hereafter to be presented, will also exhibit 
a more regular and settled organization of them, about the com • 
mencement of this era. The internal administration of the go- 
vernment from this period, was, therefore, in general, but the 
regular and ordinary operation of established forms : and pre- 
sents nothing worthy of record, in the history of that govern- 
ment, but the unceasing and unwearied vigilance of the Asscm- 



Chap.lV.l TO TrtiE TREATY OF PARIS. 283 

blic.s and liir people, in preserving the spirit of m and 

hi restraining the power of th'eir rtilers within their proper or> 
bits. At every period of this era, the i upon memorials 

of the constitutional liberty of Maryland. 

The controversy about the extension of the English statutes, 
originated in 17:2-2; and the discussions connected with it, oc- 
controvcrsy cupicd nearly the whole attention of the colony 
ri^of^th"]!?- until its termination. The origin of that contra- 
giisii statutes. vcrs y ) the principles involved in it, and the manner 
of its termination, have already been detailed; (1) and the read- 
er, in recurring to it, will perceive, that in the inquiries to which 
it led, and the principles it brought into view, it extended far be- 
yond the immediate subject. It ranged over all their chartered 
rights and privileges, and shed over these all the force and per- 
spicuity which the ablest writers and debaters of the province 
could impart. It familiarized the people of the colony with the 
character and extent of these rights, and instilled into their minds 
just notions of government. A Trojan war in its duration, it 
nourished, in the breasts of the colonists, a spirit of stern ; 1 1 1< 1 
sturdy adherence to their rights, which was perceived and felt in 
all the alter transactions of the colony. 

A new occasion for its exercise soon presented itself. From 
the close of this controversy about the statutes in 1732, until 

Dbpatei show 1739, the history of the colony presents nothing of 
tlic proprietary . . . . . 

revenue. moment, but the transactions connected with the 

disputed boundaries between it and the proi ince of Pennsylvania, 
of which a full account has already been given. (•*>) In I7 : >!>, be gran 
the dilutions about the proprietary revenue, between the lower 
houBS "I \ ' mblj and tie governors, which endured until the' 
downfall of the proprietary government. The origin, nature, ami 
results of the contests, relative to the tobacco and tonnage du- 
ties, have already been fully described. (('}) It will therefore suf- 
fice t<» remark, that at the session of 1739 i of these 
duties by the proprietary wa I under the consideration ol 
the Assembly. The introduction of thi subject led, as usual, to a 

(4 J Supra, Introduction, chap. :;<J. L21 to 1. 
(, r >) Supra, Introdui tioD, i haptei I il 
(G) Supra, 176 ind I 



281 HISTORY FROM THE RESTORATION [Hist. View. 

thorough examination of the proprietary encroachments upon the 
rights of the colony; and a scries of resolves were then adopted 
by the lower house, denouncing as manifestly arbitrary and illegal, 
the levying of these duties, the settling of officers fees by procla- 
mation or ordinance, and the creation of new offices with new 
fees without the assent of the Assembly. (7) That house resolved, 
therefore, to employ an agent resident at London, for the protec- 
tion of the colony and the redress of these grievances ; who 
should be empowered to bring them immediately under the con- 
sideration of the king in council, in the event of the proprietary's 
refusal to remove them. (8) The act proposing the appointment 
of an agent being opposed by the upper house, the measure was 
vindicated by the lower house, in a message worthy of preser- 
vation for its laconic boldness. " The people of Maryland, (say 
they) think the proprietary takes money from them unlawfully. 
The proprietary says, he has a right to take that money. This mat- 
ter must be determined by his majesty, who'is indifferent to both. 
The proprietary is at home, and has this very money to enable him 
to negotiate the affair on his part. The people have no way of 
negotiating it on theirs, but by employing fit persons in London 
to act for them. These persons must be paid for their trouble ; and 
this bill proposes to raise a fund for that purpose." (9) This bill 
was finally rejected by the upper house ; but the measure was still 
adhered to, and accomplished by the lower house. Messrs. 
James Calder, Charles Carroll, Vachel Denton, Thomas Gassaway, 
Philip Hammond, Edward Sprigg, Turner Wooton, Osborn 
Sprigg, and John Magruder, were now appointed as a commit- 
tee of that house, with power to employ an agent at London ; to 
whom, they were instructed to transmit copies of all the laws and 
documents, relative to the subject in controversy. At the same 
period, an address to the proprietary, and an address to the king, 
were prepared by that house ; the latter of which was to be pre- 
sented, only in the event of the proprietary's refusal to accede to 
their requests. These decisive measures gave rise to an angry 
controversy between the governor and the lower house, which ex- 
ended its influence to all the intercourse between them for sevc- 

r 

(7) Journals 9th June, 1739. 

(8) Journals of June 5th, 1739. 

(9) Journals of June 9th, 1739. 



Chap. IV.] TO TIIF. TREATY OF TARIS. 285 

ril years The Assembly was immediately prorogued, and every 
effort used by the governor and council, to prevent the commit- 
tee from accomplishing their duties. Contending that all the 
powers of this committee had ceased, by the prorogation of the 
house- they instructed the officers of the province, to disregard 
every command or request, made under the authority of thai 
committee. All the efforts of the committee to procure the 
necessary records, were thus frustrated, and their proceedings 
thus BUspended, until the session of 1740. At that session the 
lower house returned with renewed vigor to the purposes of the 
session of 1739, and at length obtained from the executive a 
refcetant .rant of free access to the records. Being thus furnished 
W1 ,h the necessary documents, Ferdinando JohnParns of Lon- 
don, was now retained as the agent of the colony; to whom these 
documents and the addresses of the lower house were transmu- 
ted The address to the proprietary, was responded to by him m a 
reply of the most conciliatory character, which was submitted to 
,),'. Assembly in May, 1714. Professing the utmost willingness 
to redress their grievances, he assured the Assembly of his confi- 
dence in the people of the province, in terms as gratifying to 
them as they were honorable to himself. « As for any persons 
presuming to represent his majesty's faithful subjects of England 
and my good tenants, as a factious or clamorous people, or disai- 
fected to°his majesty, or ill disposed to me, you may be assured,^ 
(says he) they have met, and will meet with that discountenance 
they deserve ; and as you have lately given testimony of your sin- 
cere attachment to his majesty's person and government, and arc 
so kind as to assure me, you never had it in your thoughts to 
abridge me in any of my rights, I may with great truth likewise 
affirm that the laws have been, and shall be, my only guide. 
(10) Our records do not inform us what was the issue ol the 
address to the crown, nor wen whether it was ever presented. 
We learn from them only, that these negotiations never led to 
any definitive adjustmenl of, I,., matters in controvers yi either bj 

the proprietary or the crown; and thai alb,- ibis per , th< 

efforts foi red* in this mode, appear to have been abandoned 
by the Assembly. Some of the grievances complained of, wore 

(10) Journals of May 2d, 1744. 



28G HISTORY FROM THE RESTORATION [Hist. View. 

now removed. Fines upon alienations by devise, had been 
formally relinquished by the proprietary, in 1742; (11) and 
officers fees were established by law, at the session of May, 1747. 
(11) But the tobacco and tonnage duties, which were the princi- 
pal subjects of remonstrance, were collected until the close of 
the proprietary government ; and their collection formed a stand- 
ing theme of complaint, to which the lower house of Assembly 
continually recurred, as a justification for their opposition to the 
measures of the government, or for their refusal to grant further 
supplies. 

During the progress of these negotiations, there were cer- 
tain transactions of the colony, connected with its foreign re- 
indian treaty of lations, which are worthy of notice, not only for 
the objects they accomplished, but also for the 
striking illustration they afford, of the lofty stand then taken by 
the lower house of Assembly, and of the high notions which it 
entertained as to its powers and prerogatives. The Six Na- 
tions of Indians have already been alluded to, as occupying 
a border position between the French and English colonies, 
which gave them a power and influence in the struggles between 
these colonies, always to be dreaded, and always to be concilia- 
ted. Immediately after the first settlement of the French along 
the lakes of Canada, a relentless and sanguinary warfare was 
waged between them and these tribes of Indians. This engen- 
dered an enduring hostility, which concurred with the interests 
of the Six Nations, in originally inclining them to the side of the 
English colonics. Yet it required all the address of the Eng- 
lish to retain these savage allies, against the perfidious arts and 
seductive proffers of their enemies. The Six Nations soon un- 
derstood the advantages of their position ; and they became mer- 
cenaries, whose assistance was to be bought. In every moment 
of emergency, it was found necessary to conciliate them, and to 
ensure their assistance by the distribution of presents ; and a sys- 
tem of contribution for the purchase of these presents, was soon 
established in the more exposed colonics, which was kept up un- 
til the extinction of the French power by the treaty of Paris. 
Maryland was one of the states which generally co-operated 

(11) Supra, 175. 



Chap. IV.] TO THE TUEATY OF PARIS. 2S7 

with New York, in the contributions for this purpose. These 
tribes also laid claim to a considerable portion of the territory of 
Maryland, lying along the river Susquehanna and Potomac ; and 
although their claims had not yet been asserted in such a man- 
ner as to bring them into open collision with the government of 
Maryland, they were yet a source of discontents which it was ex- 
pedient to remove. At the session of 1742, the subject being 
brought under the consideration of the Assembly, the lower house 
concurred with the governor, in his views as to the propriety of 
extinguishing these claims by treaty with the Six Nations, and 
assented to the deputation of commissioners to Albany for the 
purpose of negotiating it. That house, however, claimed the 
right of participating in the appointment of the commissioners; 
and accordingly appointed, as commissioners on their part, Dr. 
Robert King and Charles Carroll, to act in conjunction with such 
as might be appointed by the governor and council. (21) To 
their own commissioners they gave private instructions, which 
were very full and explicit as to all the objects of the mission, 
and by which they were restricted as to the amount to be ex- 
pended in presents. (13) The exercise of these powers gave 
great offence to the governor, by whom they were regarded as in- 
fringements of his prerogatives. He' therefore withheld from them 
his sanction; and the negotiation was consequently suspended, un- 
til the session of May, 171 1. At that session, he urged upon the 
lower house, with great earnestness, the propriety of withdrawing 
their instructions to the commissioners; but all his entreaties and 
remonstrances were unavailing. They adhered with unshaken 
firmness to the right \\ hich they had claimed, as incident t<> then 
control over the public interests and the public revenue ; and the 
governor, highly incensed at their pertinacity, was at length dri- 
ven to thr necessity, of appointing the commissioners upon his 
own responsibility, ami of accomplishing tin- objects of the mi 
rionbythe ordinary revenue of the government. The commis- 
sioners appointed by him were, Edmund Jennings, Philip Tho- 
mas, Robert Kin-, and Thomas Cblville, by whom a treaty was 
concluded with tin- chiefs of the Six Nation.-, at the town of Lan- 

(12) Journalsof 26th hi..! 29th October, 1 143. 

(13) Tin tioiu are published at large, on the Journals .-1 30th 

May 1711. 



288 HISTORY FROM THE RESTORATION [Hist. View. 

caster, Pennsylvania, on the 30th June, 1744, under which their 
claims to the territory of Maryland were utterly extinguished. 
(14) 

From the period of these transactions until the commence- 
ment of the French war, in 1754, the history of the province pre- 
statc of the Co- sents no events calculated to illustrate, either its go- 
inSfrvauJatween vernment, or the character and condition of its peo- 
tile French wax. pie. This interval was characterised, by a pecu- 
liarly tranquil and prosperous condition of the colony. In the 
war with France, which was terminated by the treaty of Aix-la- 
Chapelle, Maryland scarcely participated. Its designs and ope- 

(14) This treaty has sometimes been referred to, as if it had definitively 
adjusted the western limits of the State. It will appear, however, from an 
examination of it, that it does not profess to determine these limits, but 
merely extinguishes the Indian claims throughout the Maryland settlements, 
without drawing into question the extent of the province. The following is 
the tenor of that part of the treaty, which relates to the cession. 

" Now know ye, that for and in consideration of the sum of three 
hundred pounds, current money of Pennsylvania, paid and delivered to 
the above named sachems or chiefs, partly in goods and partly in gold 
money, by the said commissioners, they the said sachems or chiefs, on 
behalf of the said nations, do hereby renounce and disclaim to the right 
honorable the Lord Baltimore, lord proprietary of the said province of Ma- 
ryland, his heirs and assigns, all pretence of right or claim whatsoever, of the 
said Six Nations, ;of, in, or to any lands that lie on Potomac, alias Cohonga- 
routan, or Susquehanna rivers, or in any other place between the great bay of 
Chesapeake and a line beginning at about two miles above the uppermost fork 
of Cohongaroutan or Potomac on the north branch of the said fork; near 
which fork, Captain Thomas Cresaphas a hunting or trading cabin, and from 
thence by a north course to the boundaries of the province of Pennsylvania, 
and so with the bounds of the said province of Pennsylvania to Susquehanna 
river ; but in case such limits shall not include the present inhabitants or set- 
tlers, then so many line or lines, course or courses, from the said two miles 
above the fork, to the outermost inhabitant or settlement, as shall include 
every settlement and inhabitant of Maryland, and from thence by a north line 
to the bounds of the province of Pennsylvania, shall be deemed and construed 
the limits intended by these presents ; anything herein before contained to the 
contrary, notwithstanding. And the said sachems or chiefs do hereby, on be- 
half of the said six united nations, declare their consent and agreement to be, 
that every person or persons whatsoever, who now is, or shall be hereafter, 
settled or seated in any part of the said province, so as to be out of the limits 



Chap. IV.] TO THE TREATY OF PARIS. 289 

rations were too remote, to menace immediate dangeT to herself, 
or to induce her to depart from her established policy of embark- 
ing in the general warfare of the colonies, only so far as it was 
necessary for her own defence and security. Her participation 
in it, was therefore limited to a small contribution of money. 
The internal relations of the colony, during this interval, were 
equally free from embarrassments. The causes of dissension 
between the proprietary ami the Assemblies, although not re- 
moved, were lulled to repose; and the colony seemed to rest 
with confidence upon the moderation and justice of the proprie- 
tary. His assurances of his regard for their rights and inte- 
rests, and of his willingness to protect them in any manner 
which would not compromit his own, were stamped with a sin- 
cerity that for a time allayed the public discontents; and before 
they were revived, the colony was under the government of anew 
proprietary. 

By the death of Charles Lord Baltimore, (the fifth of that title) 
on the 23d of April. 1751, the government of Maryland passed 
Death or the pr<>- ' nto tne hands of his infant son Frederick. Charles 
crVarm^r ..iTm! Calvert had governed the province for thirty-six 

administration. • , . •. ,« ., • i r i ■ i • ■ . 

years, with a spirit that acquired tor his administra- 
tion the general character <>f virtue and moderation. The pe- 
riod of his government, was one fruitful in sources of internal 
dissension, which no policy could have averted. The lower 
house of Assembly now began to claim an equal rank, in point 

of privilege, with the English house of Conn 9; and thru 

claims were, in some instances, advanced not onl) beyond what 
hail been their accustomed powers, but even to an extent un- 
warranted either hj their parallel or the charter' of the province. 
Tin- verj noveltj of some of their pretensions, made them 
more jealous of enproachments upon them: and the sarcasm 
and ridicule, with which they wen- injudiciously resisted by the 

aforesaid, shall 1 continue in Ihi Lr pi na free and 

undisturbed, and be esteemed as brethren bj the Sis Nations. In witness 
whereof, tl for themselves, and on behalf of the 

peefl id, have nereunl > si 1 their hands and seals, 

the thirtieth da] "I 1 of our Lord, thout liun- 

'lnri ;,ii,i forty-four. 

37 



290 HISTORY FROM THE RESTORATION [Hist. View. 

governors of the province, and particularly by governors Bladen 
and Ogle, contributed to sustain a constant jealousy between the 
Assemblies and the executive, which often fancied danger even 
where there was no cause for apprehension. Yet this jealousy, 
although it awakened occasional discontents, did not degenerate 
into settled hostility, nor abate the attachment of the colony to 
the government and person of the proprietary ; and in its ulti- 
mate results, it did but the more endear its colonial institutions, 
by bringing into view and contrast their peculiar freedom. The 
proprietary himself, was never charged with any deliberate de- 
signs against their liberties ; and the occasional differences be- 
tween him and his people, were followed by a renewed attach- 
ment, the more ardent from its very suspension. The death of 
the proprietary, in this interval of tranquillity, left his character 
in the fullness of its honor; and the memory of his virtues re- 
mained, to renew the attachments of the colony in the person of 
his infant son. 

The course of Maryland, during the French war, which com- 
menced in 1754, and was closed by the treaty of Paris, in 1763, 
Course of Mary, appears to have been but little understood by most 
Prencf'wiff.^S of the writers who have treated of the events of 
1754# that war. By the British government, it was con- 

sidered one of obstinate and unreasonable opposition to its wish- 
es and the general interests of the colonies. By some of the sis- 
ter colonies it was deeply censured, as a selfish disregard of the 
mutual obligations of the colonies to protect each other: and in 
some of them, so high did the public indignation mount, that the 
design of applying to parliament to coerce her to come heartily 
into the common cause was in agitation. (15) Her course is 
rendered still more memorable by its ultimate results. The want 
of her efficient co-operation, was seriously felt in several of the 
campaigns of this war. The requisitions of the crown for the 
supply of men and money, although backed by the entreaties 
and remonstrances of her governors, were, in almost every in- 
stance, disregarded by the Assembly; and the repeated disre- 
gard of these, made the English government fully sensible of 
the inefficiency of the requisition system, to give it command of 

(15) Franklin's Works, 4tkvol. 123; 1st Pitkin's United States, 204. 



Chap. IV.] TO THE TREATY OF PARIS. 291 

the resources of its colonies. That government now discovered 
that the humble colonies, whom it had hitherto looked upon as 
mere purveyors for its commerce, and instruments of its ambi- 
tion, were composed of a resolute and self-willed people, claim- 
ing for themselves the exclusive rights of taxation and internal 
regulation, and the personal privileges of the most favoured Eng- 
lish subjects. To be thwarted by these, was more than the 
haughty ministers of England could brook. Mr. Pitt himself, 
who afterwards became the champion of American liberties, was 
so highly incensed at the course of Maryland, that he avowed 
his intention of bringing the colonies into such subjection, when 
peace should be restored, as would enable the English govern- 
ment to compel obedience to their requisitions. (16) The ill 
feelings which it excited in some of the other colonies, suggest- 
ed an°d encouraged this design; and it ultimately assumed a de- 
finite form, by the passage of the Stamp Act. That act had other 
designs than the mere collection of revenue from the colonies. 
It w°as a mere experiment, in order to the full establishment of 
the supremacy of parliament over the colonies ; and that experi- 
ment was, in a great measure, prompted by the neglect of the 
crown requisitions, during the preceding war, in several of the 
colonies, but especially in Maryland. Hence we find, that in 
the examination of Dr. Franklin, in 176G, when the repeal of the 
Stamp Act was under consideration, the conduct of Maryland, 
during that war, was brought up as one of the objections to its 
repeal (17) If the requisitions of the crown had been fully and 

(16) 1st Gordon's America, 97. 

(17; One of the queries propounded to him, during that examination, re- 
lated to the course of Maryland in refusing to furnish her quotas, franklin 

repfitod to thM query in a manner winch shows that he undera I and ap- 

preeUted the conduct of the Maryland Assemblies. "Maryland," says he 
••has been much misrepresented in that matter. Maryland, to mj know- 
ledge, never refused to contribute or grant aids to the crow n. The \ 

i,eTery year during the war, roted considerable sums, and formed bills 
to -raise then* The bills were, according to the constitution of thai pro- 
vince, eent up to the coubcUot upper house for concurrence. I nl 
disputes between the two oou* h arising from the defeetaofthal i onatitution 
principally, rendered all the i.iiM.m one oi two JwttiTe. II is true, Marj- 
| :in ,l did not then contribute its proportion, but it wot, in my opinion, tkt 
f,iuu ojth. psemmcitf, not oftk pecpk. M — Frauklin'e Works, 4th vol. ISA. 
In sereral of the Pamphlets, wrrttoa in vindication of the Stamp Aftt, the 



292 HISTORY FROM THE RESTORATION [Hist. View. 

promptly complied with in all the colonies, the necessity of 
strengthening her control over them, would not have been so 
urgent: and in the absence of a palliative for the act, the dan- 
gerous expedient of colonial taxation would scarcely have been 
ventured upon, even by a needy ministry. The events of this 
period are therefore highly interesting ; and require such a detail 
of them, as will fully elucidate the conduct of the colony. 

This war, so memorable for its results, was the last great 
struggle for mastery between the French and English co- 
Origin and ob- lonies of North America. The limits between the 

jects of this war. t? 1 i -n t 1 

drench and Jbnghsh possessions, were vague, or 
undefined ; and every effort to render them definite, had hitherto 
proved ineffectual. On the north, Nova Scotia had been ceded 
by France to England, in 1713, under the treaty of Utrecht; but 
the exact limits of this cession, were left to be ascertained by 
commissioners appointed under the treaty. Conflicting views, as 
to its extent, soon arose. On the side of England, it was con- 
tended, that Nova Scotia, as ceded to her, embraced all the ter- 
ritory lying north of her former possessions, and between them 
and the St. Lawrence ; whilst it was alleged, on behalf of France, 
that it included only the peninsula formed by the Bay of Fundy 
the Atlantic ocean, and the Gulf of St. Lawrence. The treaty 
of Aix-la-Chapelle found these conflicting claims still unrecon- 
ciled ; and being formed upon the principle of restoring all con- 
quests to the " statu quo ante bcllum," it again referred these 
differences to the adjustment of commissioners. The negotia- 
tions of the commissioners were protracted until the occurrence 
of events, which enkindled a contest for territory, far more ex- 
tensive in its aims. The French settlements of Louisiana had 
now become populous and thriving, and were rapidly extending 
themselves along the Mississippi. As the pre-occupants of the 
Mississippi, the French now laid claim to all the territory watered 
by that extensive river and its tributaries, and contended for the 
Alleghanies as the eastern limits of their possessions. On the other 

course of Maryland was continually appealed to, as shewing the inefficiency 
of the ordinary mode of raising revenue in the colonies, to meet the purposes 
of the English government ; and it was always described as one of wilful dis- 
regard of the general safety .-See Mr. Dulany's Pamphlet against the Stamp 
Act, page 21. 



Chap. IV.] TO THE TREATY OF PARIS. 293 

hand, the English claims, and some of the English grants, extend- 
od from the Atlantic to the Pacific. In this more momentous 
controversy, the differences about their northern boundaries were 
soon merged. The French governor of Canada had the sagaci- 
ty to perceive, and the energy to prepare for, the crisis which 
was rapidly approaching. His fortifications were extended along 
the lakes; and he now conceived the bold design of forming a 
complete communication between Louisiana and Canada, by a 
chain of fortifications extending along the Mississippi. The 
open conflict between the two powers was hastened on by oc- 
currences, which left no nine for the accomplishment of this de- 
sign, or the silent and peaceable pre-occupation of the territory 
claimed. A grant, located in the debateable territory west of the 
Alleghanies, had been made by the English government, in 
1749, to an association of individuals of wealth and influence, 
styling themselves the Ohio Company. To accomplish its com- 
mercial purposes, trading posts were soon established under the 
direction of this company, and extended even to the Ohio. To 
the French, this was the- signal for alarm; and it was followed by 
prompt and decisive measures of reprisal on their part, indicat- 
ing their full determination to maintain their claims by the strong 
hand. Some of the English traders amongsl the Indians, were 
seized and imprisoned; and one or two of the fortified trading 
posts of the company, were reduced and pillaged. A communi- 
cation was also opened, by the way of the Alleghany river, 
between the French posts on the lakes and the Ohio, and 
troops stationed along the line of communication. These un- 
equivocal acts of hostility, removed all doubts as to the ultimate 
designs of the French. Indignant al these outrages, the gover- 
nor of Virginia despatched Colonel Washington on a special 
embassy, foi the purpose of requiring the immediate evacuation 
of the invaded territory. His demands were met. by a reply, 
which left no room to hope far an amicable surrender of the 
French claims. In tl, ency, hostilities were inevitable; 

and the Bafety of the English possessions demanded the utmost 
promptitude and rigor in their prosecution. 

Such were the primary causes of the war, in which Maryland 
wn- now required to embark. It was, in its origin, a mere con- 
test for territory, in which the province had no interest, exc< pi 



291 HISTORY FROM THE RESTORATION [Hist View. 

Policy of the ^at of keeping the French and their savage allies 
the SC op'">ng of at a distance from her border. To Virginia it 
tins war. wag more important ; for it involved her right to 

an extensive territory ; and this consideration, added to the 
influence of the members of the Ohio Company, induced her 
to enter warmly into the preparations for hostilities. The 
English government perceived, at once, the dangerous conse- 
quences likely to result to her possessions, from these encroach- 
ments, if not instantly repelled: and therefore she entered fully 
into the spirit of Virginia. Upon the first manifestations of the 
designs of the French, circulars were addressed by the Earl of 
Holdernesse (then secretary of state) to the several colonies, en- 
joining it upon them generally, to resist by force all attempts to 
intrude upon or make settlements within the British possessions. 
That addressed to the colony of Maryland, was submitted to its 
Assembly, at October session, 1753; but its requisitions, although 
sustained and urged by its executive, were without effect. The 
lower house assured the governor, "that they were resolutely 
determined to repel any hostile invasion of the province by any 
foreign power ; and that they would cheerfully contribute to the 
defence of the neighboring colonies, when their circumstances 
required it; but they did not deem this a pressing occasion." (18) 
This language indicated the course afterwards pursued by the 
colony, and their utter repugnance to embarking in a war of 
mere ambition. The commands of England, the entreaties of 
Virginia, and the remonstrances of their governor, were all in- 
sufficient to induce the house of Assembly to depart from this 
policy; and Virginia was therefore compelled to enter unassisted 
into the campaign of 1754. (19) 

Yet whilst this colony thus withheld herself from active co- 
operation in enterprises not called for, by any direct attack upon 
her settlements, or those of the sister colonies, but merely intend- 
Transactions of ea " to anticipate their occurrence ; she was not 
connexion nC with unmindful of her obligations to contribute to the 
of e thrSny common defence. The requisitions of the English 
convention. government, so far as they enjoined it upon her to 

(18) Journals of the House of Delegates, 5th and 6th November, 1753. 

(19) Journals of House of Delegates, 26th February, and 5th and 8th of 
March, 1754. 



Chap. IV.] TO THE TREATY OF PARIS. 295 

send commissioners to the general convention at Albany, with 
presents to secure the assistance of the Indians, were cheerfully 
complied With. The sum of £500 was appropriated by the As- 
sembly, for the purchase of presents, and commissioners were de- 
puted by the governor to represent Maryland in that convention. 
The objects and operations of that convention, extended far be- 
yond the purpose contemplated by Maryland in the appointment 
of her commissioners. The necessity of union amongst the colo- 
nies to meet the emergencies of the period, was forcibly incul- 
cated, in the circulars from the secretary of state, and the instruc- 
tions from the commissioners of trade, under which this conven- 
tion was assembled; but by the Assembly of Maryland, these re- 
commendations were regarded, as merely enjoining concerted 
and harmonious action amongst the colonies, for the common 
defence. The formation of a confederated government, was not 
even remotely contemplated as one of their objects ; and if this de- 
sign had been disclosed, at any time before the deputation of her 
commissioners, she would, most probably, have receded from the 
whole measure. Her people were peculiarly attached to their 
charter-government ; and jealous of all measures, which tended in 
any decree to diminish its independence. At every period of 
her colonial existence, the plan of a confederated government 
was therefore resisted with great unanimity. Yet such a govern- 
ment over the English colonies, had always been a desideratum, 
i„ all their operations for a general defence; and the necessity 
of it was peculiarly felt at this critical juncture, when they were 
destined to encounter the undivided energies of the French 
power in America. Deeply sensible of this, the members of the 
\lbany convention, as soon as they had concluded their negotia- 
tions with the Indians, unanimously resolved, "That an union 
of the colonies was accessary for their preservation." Various 
plans of union were then submitted, of which the one ultimately 
adopt,,!, was thai proposed by Dr. Franklin. To enter into the 
(lH , lls of this scheme of confederacy, would lead us too far away 
from the purposes of .Ins work. The proceedings of that con- 
vention, and the general features and tendencies of the govern- 
ment proposed by it, are already matters of history, and have 



296 HISTORY* FROM THE RESTORATION [Hist. View. 

been described ;md illustrated by able writers. (20) It shared the 
usual fate of all schemes of compromise, addressed to conflicting 
jealousies. It was disapproved of by the crown, because it vest- 
ed too much power in the colonies; and rejected by the colonies, 
because it gave too great a control over their operations to the 
crown. In Maryland, it encountered the most decided opposi- 
tion. When submitted to the Assembly, it was unanimously 
disapproved of by the lower house, " as tending to the destruc- 
tion of the rights and liberties of his majesty's subjects in the 
province." An address to the governor was at the same time 
adopted, which contains the following forcible remonstrance 
against this plan of union. '•' We do not conceive (says the ad- 
dress) that the commissioners were intended, or empowered, to 
agree upon any plan of a proposed union of the colonies, to be 
laid before the parliament of Great Britain, with a view to an 
act, by which one general government may be formed in Ameri- 
ca ; and therefore do not deem it necessary to enter into any 
particular notice of the minutes of their proceedings relative to it. 
But as it appears to us, we cannot, in consistence with our duty 
to our constituents, refrain from remarking, that the carrying of 
that plan into execution, would ultimately subvert that happy 
form of government to which we are entitled under our charter, 
(the freedom of which was, doubtless, the great inducement to 
our ancestors, to leave their friends and native country, and ven- 
ture their lives and fortunes among a fierce and savage people, 
in a rough, uncultivated world;) and destroy the rights, liberties, 
and property, of his majesty's loyal subjects of this province." (21) 
During the progress of these transactions, the results of the 
campaign of 1754 had given to the French war a new aspect. 

The Virginia forces under Colonel Washington had 
cep S di"gs y in July , been captured at the Little Meadows ; and Fort Du 

Quesnc, just erected by the French at the site of 
the present town of Pittsburgh, menaced danger to the frontier 
settlements both of Virginia and Maryland. The Assembly was 

(20) This plan of union, and the reasons which induced its illustrious author 
to give it the form proposed, will be found at large in 4th vol. of Franklin's 
Works. — See also 1st Pitkin's United States, 143 and 429. 

(21) Journals of House of Delegates, of 10th March, 1755. 



Chap. IV.] TO THE TREATY OF PARIS 297 

immediately convened; and the propriety of making instant pro- 
vision for the defence of the frontier, and the protection of the 
Indian allies, was urged upon it by the governor in the raosl 
earnest and forcible terms. (2:2) The occasion was one of that 
very character, previously indicated l>y the colony, as entitled to 
her exertions; and the Assembly, true to its obligations and pro- 
fessions, was now as prompt, as it had previously been remiss. 
The sum of JCGOOK was immediately appropriated, <° be applied, 
under the direction of governor Sharpe, to the defence of the 
colony of Virginia, and the relief and support of the wives and 
children of the Indian allies. (23) 

From this period until the commencement of the campaign of 
]?•"><), Maryland bore no part in the contest; but her passiveness 
inactivity of the is not attributable to her unwillingness to aid the 
the°campaic!i r "of common cause. From the moment at which it bc- 
1764 and 1755. camc manifest that the security of the colonies 
was endangered, her Assemblies were ever ready to make such 
appropriations for the general defence, as her circumstances 
would permit; but, unfortunately, disputes now arose between 
the two houses of Assembly, as to the mode of raising the reve- 
nue to meet these appropriations, which resulted in defeating the 
appropriations themselves. Under the supply bill of 1754, va- 
rious taxes were imposed, to constitute a sinking fund for the re- 
demption of the issues authorized by that act. Amongst these was 
an increased tax on ordinary licenses, and a duty on imported sei 
rants, embracing, by its general terms, transported convicts. In 
the subsequent supply bills, as passed by the lower house, these 
duties were continued as a part of the sinking fund for the dis- 
charge of the new appropriations. Their continuance was re- 
sisted by the governor and upper house, and as strenuously in- 
sisted on by the lower; and hence the defeat of the contem- 
plated appropriations of this period. The messages connect- 
ed with this contro rm a highlj interesting portion Qfour 
public documents, and reflect great lustre upon the lower house, 
from the abilitj and firmness winch characterize them. The 

(■22) Governor^ Message in Journal of House oi Del 17th July, 

1754. 

(23) Act of July, 1754, chop '.hi, 



298 HISTORY FROM THE RESTORATION [Hist. View. 

nature of the controversy will show, that they were at issue upon 
important principles. 

The power to grant ordinary licenses, had always been claim- 
ed and exercised by the governors of the province, as a branch 
Controversy a- °^ proprietary power; and the revenue arising from 
on Ut ord/n e ary IU ] t i^ *'» was claimed, and had generally been collected , 
as a part of the private revenue of the proprietary- 
In some of the early laws, however, this revenue had some- 
times been applied to public uses ; and upon these, and the 
nature of the fund itself, the lower house soon founded a claim 
to it, as public revenue, always subject to their application. 
The urgency of the occasion, had induced the governor and 
council to assent to the duty on these licenses imposed by 
the act of 1754; but the attempt to continue it was strenu- 
ously resisted as an invasion of proprietary prerogative. An 
open conflict as to the nature of this fund, at once ensued ; 
and it was now solemnly resolved by the lower house, "that 
the fines arising on ordinary licenses, were, and always had 
been, the undoubted right of the country ; and that the lord 
proprietary of the province, by his prerogative, had no right to 
impose, or levy by way of fine, tax, or duty, any sum of money 
on any person whatsoever." To the principles of this resolve 
they sturdily adhered. 

The objections to the duty on convicts, appear to have been 
elicited by the controversy about the license duty, and to have 
Character of been advanced by the upper house, as a mere cover 
that relative] to t0 their more serious objections to the latter. The 

the duty on con- J 

victt * practice of transporting convicts into the colonies, 

was introduced at an early period, and had been very far extend- 
ed by the statutes passed in the reign of George I., authorizing 
transportation as a commutation punishment for clergyable felo- 
nies. The number of transported convicts had so much increased 
under these statutes, that at this period there were not less than 
three or four hundred annually transported into Maryland. (24) 

(24) 1st Pitkin's U. States, 133. A writer in the Maryland Gazette of 
30th July, 17G7, gives us a higher estimate. " I suppose (says he) that for 
these last thirty years, communibus annis, there have been at least GOO con- 
victs per year imported into this province : and these have probably gone 
into 400 families." After answering some objections to their importation 



Chap. IV.] TO THE TREATY OF I>ARIS. 299 

The introduction of such a population, was a source of great 
complaint amongst the colonists; and although they did not 
venture to put themselves in direct opposition to the statutes, 
by prohibiting the importation of convicts, they deemed it a fit 
subject for taxation. The manner of their importation encou- 
raged this measure. The convicts were transported by private 
shippers, under a contract with the government; and were sold 

because of the contagious diseases likely to be communicated by them, he 
further remarks — " This makes at least 400 to one, that they do no injury to 
the country in the way complained of : and the people's continuing to buy 
and receive them so constantly, shows plainly the general sense of the coun- 
try about the matter ; notwithstanding a few gentlemen seem so angry that 
convicts are imported here at all, and would, if they could, by spreading this 
terror, prevent the people's buying them. I confess I am one, says he, who 
think a young country cannot be settled, cultivated, and improved, without 
people of some sort : and that it is much better for the country to receive 
convicts than slaves. The wicked and bad amongst them, that come into this 
province, mostly run away to tbe northward, mix with their people, and pass 
for honest men : whilst those more innocent, and who came for very small 
offences, serve their times out here, behave well, and become useful people." 
This attempt to justify the Convict Trade, elicited two able and spirited 
replies over the signatures of " Philanthropos" and " C. D." appearing in 
Greene's Gazette of 20th August, 17G7, in which the writer of the first article 
is handled " with the gloves off." " His remarks (sajs Philanthropos) remind 
me of the observation of a great philosopher, who alleges that there is a 
certain race of men of so selfish a cast, that they would even set a neighbour's 
house on fire, for the convenience of roasting an egg at the blaze. That 
Ihcae are not the reveries of fanciful spcculatists, the author now under con- 
sideration is in a great measure a proof ; for who, but a man swayed with the 
most sordid selfishness, would endeavor to disarm the people of all caution 
against such imminent danger, lest their just apprehensions should interfere 
with his little schemes of profit ? And who but such a man would appear 
publicly as an advocate for the importation of felons, the scourings of jails, 
and the abandoned outca-ts of the British nation, as a mode in any sort eligi- 
ble fur pcoplinga young country ?" In another part of his reply he remarks, 
"In confining the indignation because of their importation to a few, and 
representing that tbe general sense of the people is in favor of this vile impor- 
tation, he is guilty of the most shameful misrepresentation and the grossest 
calumny upon the whole province. W hat opinion must our mother country, 
and our sister colonies, entertain of our virtue, when the) see. it confidently 
rted in the Marj land Gazette, that we arc fond of peopling our country 
with the inost abandoned profligates in the universe? is this the way to 
purge ourselves from that false and bitter reproach, so commonly thrown 



300 HISTORY FROM THE RESTORATION [Hist. View. 

in the colonies for the advantage of the shipper. (25) Their 
transportation was, therefore, a most gainful species of com- 
merce, in the hands of private individuals; and as such, was as 
fair a subject for the imposition of a duty, as imported merchan- 
dize. In Pennsylvania, a poll tax was imposed on imported 
convicts as early as 1729 ; and in Virginia and Maryland, attempts 
had been made at a still earlier period, to restrain the evils arising 
from their importation. (2G) When the general duty on im- 
ported servants was imposed by the act of 1754, no objection 
was made to it by the upper house, because it embraced con- 
victs ; and the duty was collected for the redemption of the ap- 
propriations of that act, until the close of the war. But the 
continuance of it, in the new supply bills, was resisted, as being 
in conflict with the acts of parliament authorizing the importa- 
tion. During the pendency of the controversy, the subject was 
brought under the consideration of the attorney-general of Eng- 
land, (Mr. Murray, afterwards lord Mansfield,) who pronounced 
the opinion " That no colony had power to make such laws, be- 
cause they were in direct opposition to the authority of the par- 
liament of Great Britain ; and that, if they were proper, the co- 
lonial legislatures might, with equal propriety, lay duties upon, 
or even prohibit, the importation of English goods." (27) The 
parallel given was, itself, an answer to this opinion ; inasmuch 
as by the express giants of the charter, (which, lord Mansfield 
frankly admits in his opinion, he had not examined,) the legisla- 
ture of Maryland had power to impose duties on imported British 
merchandize. (28) Yet this opinion was relied upon, with seem- 

upon us, that we are the descendants of convicts ? As far as it has lain in my way 
to be acquainted with the general sentiments of the people upon this subject, 
I solemnly declare, that the most discerning and judicious amongst them 
esteem it the greatest grievance imposed upon us by our mother country." 

This writer also informs us, that the ordinary price of convicts, if common 
labourers, was about £12 sterling ; and if tradesmen, from -€18 to50sterling. 

(25) Message of H. of D. of lCth Deer. 1757, and Journals of H. of D. of 
14th March and 2GthFeb. 1755, and note (25). 

(2G) 2d Chalmers's Opinions, 112 ; and Maryland act of 1725, chap. Gth, 
dissented from by the proprietary. 

(27) Governor's Message in Journal of H. of D. of 7th May, 1757, and 1st 
Chalmers's Opinions, 347. 

(28) Charter, sect. 17th, and an tea, 163. 



Chap. IV.] TO THE TREATY OF PARIS. 301 

ing confidence, by the governor and council ; and pressed, but 
fruitlessly, upon the lower house, to induce it to suspend the 
collection of that duty under the act of 1754. Some delays in 
its collection subsequently occurring, the governor attempted to 
take refuge under this opinion. (-2!)) The reply of the lower 
house evinces, that " neither tall, nor wise, nor reverend heads" 
had much influence in reducing the Assemblies of Maryland to 
submission, when they were warring for their rights. It is 
so characteristic of the people, and the temper of the times, 
that we cannot withhold it. " As we have understood, (says 
the message,) that opinion was obtained by the persons near- 
ly interested in the event, we arc inclined to think, that it 
was not founded on a very fair and impartial statement of the 
case; and therefore, until some regular authoritative inhibition 
from the government of the mother country shall circumscribe 
the cfFcct of our law, it will and ought to have its full operation 
and force. Precarious, and contemptible indeed, would the state 
of our laws be, if the bare opinion of any man, however distin- 
guished in his dignity and office, yet acting, as in the present in- 
stance, in the capacity of a private lawyer or counsel, should be 
sulficient to shake their authority and destroy their force." (30) 

(29; Journals of II. of D. 14th April, 4th and 7th May, 10th and ICth De- 
cember, 1757. 

(30) Journ. of H.of D. 10th April, 1758. There were several occasions in 
the Colonial History of Maryland, when resort was had to the Crown Lawyers 
for opinions, to influence the deliberations, or change the judgments of the 
Assemblies : but they never answered the purposes for which they were ob- 
tained. Vouched as they were by great and imposing names, and claiming to 
be oracular, they were regarded by the Assemblies as alike the flattering 
responses of the oracles of olden times — always adapted to the wishes of those 
who sought them. Tin- reader, u ho baa had occasion to read Mr. Chalmers's 
Collection of Opinions relative to the colonies, must have been struck with 
the unsatisfactory nay imbecile character of many of those opinions, coming 
from lawyers conspicuous for their integrity, their general ability, and then- 
professional learning. They manifest a degree ofcareli ssness, and a want of 
research, in the investigation of the questions submitted, which serve to show 
Jiow lightly the colonial rights ami interests were regarded. It will be seen 
in the text, that even Mansfield, in an opinion professing to determine the 
extent of the legislative power of th< Colonial Assemblies of Maryland, admits 
that he had not even examined the charter by which that power was given, 
and under which it w l. Thus it was that the rights of a people 



302 HISTORY FROM THE RESTORATION [Hist. View. 

It is therefore apparent from these details, that the course of 
Maryland, during the campaigns of 1754 and 1755, was not one 
Propriety of the °f timid abandonment, or selfish disregard, of the 
fower 6 house 'as general interests of the colonies. When the proper 
versles? contro * occasion for action had arrived, it was met by her 
with promptness and alacrity. The messages of the lower house 
of Assembly all breathe the spirit of men, deeply sensible of their 
obligations for the common defence, and ardently desirous to 
redeem them. Yet they were unwilling to jeopard, for the ac- 
complishment of their wishes, the sacrifice of unquestioned 
rights, or to make their discharge of one duty dependent upon 
their wilful disregard of another. To their constituents they 
owed it as a sacred duty, to guard with the most apprehensive 
jealousy, the rights of taxation and internal regulation, as the ex- 
clusive prerogatives of their Assemblies. Upon the preserva- 
tion of these prerogatives in purity and perfection, depended the 
essential liberties of the colony; and it is manifest, that the con- 
cessions demanded by the upper house could not have been ac- 
ceded to, without a surrender of the principles to which the lower 
house of Assembly and the colony stood pledged, by repeat- 
ed acts and resolves of the most explicit character, in relation to 
the exercise of the taxing power. The proprietary, at that very 
period, was collecting the tobacco and tonnage duties ; although 
their collection had, for years, been denounced by the people of 
the province, as the exercise of arbitrary prerogative, usurping 
the power to tax, and that too for the private benefit of the pro- 
were passed upon and rejected, without giving to them as much consideration 
as would have been bestowed upon a petty question of property between in- 
dividuals. From the character of many of the opinions of the Crown 
Lawyers as to the Colonies, one would suppose that they had been given for 
half A CROWN. 

They were happily characterised by the distinguished Daniel Dulany, in his 
remarks upon the Stamp Act. " I have lived long enough, 1 ' says he, " to 
remember many opinions of Crown Lawyers upon American affairs. They 
have all been strongly marked with the same character. They have generally 
been very sententious, and the same observation maybe applied to them all — 
Tkey have all declared that to be legal, which the Minister for the time being has 
deemed to be expedient. The opinion given by a General of the Law on the 
question, whether soldiers might be quartered on private houses in America, 
must be pretty generally remembered." — Dulany's Considerations. 



Chap. IV.] TO TIIF. TREATY OF PARIS. 303 

prictary. The exclusive right, now claimed for him, of granting 
ordinary licenses, and of assessing and receiving for his own 
benefit the amount of license money to be paid upon their grant, 
advanced one step further in the march of prerogative. It had 
no fig leaf to hide its nakedness. It had neither the sanction of 
the charter, nor the color of law ; and resting, for its justifica- 
tion, solely upon its previous exercise, the very claim of it upon 
precedent, did but more strongly demonstrate the necessity of 
resisting it at the threshold. Whilst the independence of the 
taxing power of the Assemblies was thus menaced, the objections 
to the duty on convicts struck at its very root. They denied its 
exercise in the very case where the propriety of it was sanc- 
tioned by the most solemn guarantees of the charter; and where 
also, it was merely a measure of internal regulation against an 
acknowledged evil. In the act of 1754 these duties had been 
sanctioned ; and to yield them now upon such objections, was 
to give a vantage ground to prerogative never to be reclaimed. 
The Assemblies therefore acted upon the maxim, " obsta prin- 
cijiiis ;" and they acted wisely. 

The disastrous results of the campaign of 1755, had, however, 
placed the colony in a condition which no longer permitted the 
lower house to pause for the acknowledgment of these rights. 
Unprotected con- The expedition under general Braddock, in which 

dition of the 

frontiers, at the Maryland bore no part, had been signally defeated ; 

cloge of the cam- 
paign of 1756. and by the retirement of the British troops, the fron- 
tier settlements of Maryland were left open and entirely unpro- 
tected, against the incursions of the savages, now hanging on her 
borders. The terror occasioned by Braddock's defeat, was borne 
by the borderers to the very heart of the settlements. The 
westernmost settlements of that period, extended but very little 
beyond the month of Conococheague creek. There were indeed 
beyond this limit, a few of the more adventurous of the borderers, 
who, like Boon or Leather-Stocking, were continually plunging 
deeper into the wilderness to escape the advance of the settle- 
ments; but the Conococheague was then about the "ultima 
Thule" of civilization. There was ;i settlement at Fort Cumber- 
land; butil was not then b settlement of this colony. The site 
of the latter place, at the junction of Will's creek and the Poto- 
mac river, ha<l recommended it strongly to the consideration 



301 HISTORY FROM THE RESTORATION [Hist. View. 

of the Ohio Company, as an advantageous position for the esta- 
blishment of a trading post ; and a trading station was accordingly 
established there by that company, as early as 175:2-53, which 
soon became one of its most important establishments. The 
place itself, appears to have been regarded by that company, as 
within the limits of his grant; as a town was actually laid out, 
under the direction of that company, upon the site of the present 
town of Cumberland. (31) A stoccado fort was soon erected for 
the protection of the post; and in the expeditions of 1754 and 
1755, it became the usual place of rendezvous for the troops 
destined for the Ohio, and was garrisoned by forces from Virginia. 
But from the settlers of Maryland, this post was separated by a 
deep and almost trackless wilderness of eighty miles in extent, 
which, in times of savage hostility, cut off all communication and 
hopes of assistance. (32) A journey to it, at that day, would have 
been considered almost as perilous as a modern journey to the 
Rocky Mountains; and its very situation, was a subject for con- 
jecture to the people of Maryland generally. Thus situated, this 
fortification afforded no protection to the frontier settlements of 
the colony. There were many passes by which the enemy might 
approach them, without coming within the range of that fort ; 
and it was too remote to afford hopes of succour, in cases of 
sudden attack. Against such attacks they had no protection, 
except that afforded by a few small stockade forts, erected by the 
borderers themselves as places of retreat for their families; for at 
the commencement of this war, there was not a regularly garri- 
soned fortification in the whole province. 

The emergencies of such a situation required all the energies 
of the colony. A general council of the colonial governors had 

(31) This information is derived from Charles Fenton Mercer, Esq. who 
has or had in his possession, the papers of the Ohio Company, and amongst 
them, a draught of the plan of this town. 

(32J Even as late as 175G, this fort was so far in advance of the frontier 
settlements both of Virginia and Maryland, that Washington, who had then 
the command of the Virginia forces, constantly urged upon the governor of 
Virginia, the propriety and necessity of abandoning it on that very account. 
" The governor, (says the historian) thought it improper to abandon it, since 
it was ' a king'' ft fori,'' and Lord Londoun, on being consulted, gave the same 
opinion." 2d Marshall's Life of Washington, 30. 



Clap. IV] TO THE TREATY OF PARIS 305 

been held at New York, in the fall of 1 7 56, to determine upon 
Efforts of the tne operations of the coining campaign. In ihis 
tnlfmta'astatoof council, at which Sharpe, governor of Maryland, was 
defence. present, a most extensive plan of operations was 

adopted: (33) and the governors returned to their respective 
colonies, to urge upon the Assemblies the measures necessary 
for its accomplishment. The Assembly of Maryland responded 
promptly to the call. Waiving, altogether, the tax on ordinary 
licenses, and the duty on convicts, to which its lower house had 
hitherto so pertinaciously adhered, as a part of the sinking fund, 
it now voted a supply of £40,000 ; of which, £11,000 were to be 
applied to the building of a fort and block house on the western 
frontiers, and keeping up a garrison therein ; and £25,000 was ap- 
propriated in aid of any expedition for the general service. (34) 
Every exertion was now made to put the frontiers in a state of 
defence. The erection of an extensive and powerful fortifica- 
tion, called Fort Frederick, was instantly commenced, and so far 
completed before the close of that year, as to receive a garrison 
of two hundred men ; and a company of rangers was raised, to 
co-operate with the garrison. (35) 

(33) 1st Marshall's Life of Washington, 473. 

(34) Act of February, 1756, chapter 5th. 

(35) Tort Frederick is, I believe, the only monument of the antc-rcvolu- 
tionary times, now to be seen in the western parts of this Stale. Ever? Ft - 

of the fortification at Cumberland has disappeared. Fort Frederick 
stands on an elevated and rather commanding position in the plains along the 
Potomac, distant about one fourth of a mile from that river, and about ten or 
eleven miles above the mouth of Conococheaguc creek. It was constructed 
of the most durable materials, and in the most approved manner, at an ex- 
pense of upwards of ^G(iljl). When the writer saw it, in the summer of 1828, 
the greater part of it was still standing, and in a high state of preservation 
in the midst of cultivated fields. According to the descriptii n given of it at 
the period <if its construction, its exterior lines were each 120 yards in 
length, (the fort being quadrangular ;) its curtains and bastions were faced 
with a thick stone wall ; and it contained barracks- sufficient for the accom- 
modation of throe hundred men. Replj of Governor and Council to the 

era <>i tr.r i . 1 756, in Coun. Pro. Lib< r, 'i R 

\\ - LIT to 120. 

w ■ shall i pardoned for annexing to this note, the follow .e of 

lae li bj the language ol cotemporai i< 

frontiers at that penud, and ih< object of this fortification. 



•306 HISTORY FROM THE RESTORATION [Hist. View. 

During the years 1756 and 1757, the border settlements remained 
in a state of jeopardy, requiring the constant vigilance ol* the colo- 
ny ; and their security was frequently disturbed by some act of 
New disputes savage barbarity, from the very imagination of which, 
"me?' ste, ", J w e recoil. With the campaign of 1758, this period of 
house" of As° anx i Gt y an d peril passed away. The capture of fort 
y ' Du Quesne, during that year, by the expedition un- 

der General Forbes, annihilated the French power in that quar- 
ter, and awed into submission the surrounding savages. Inter- 
nal tranquillity was again restored to Maryland ; and with it re- 

" Mdress of the House of Delegates, December 15i/t, 1757. 
"Fort Cumberland, we are informed, was first begun by some gentlemen of 
the Ohio Company, as a storehouse of their goods designed for the Ohio Indian 
trade, and never was garrisoned by troops stationed there by the direction of 
any law of this province, but commonly by Virginia forces. That fort, we have 
too much reason to believe, from an extract of a letter from your excellency 
to the Secretary of State, laid before the lower house in September session, 
seventeen hundred and fifty-six, in which are the following words : " There 
are no works in this province that deserve the name of fortifications ; 
just behind, and among our westernmost settlements, are some small stoccado 
or pallisadoed forts, built by the inhabitants for the protection of their wives 
and children ; and besides these, there is one larger, though in my opinion not 
much more capable of defence, on Potowmack, about 56 miles beyond our set- 
tlements. It has been distinguished by the appellation of fort Cumberland, and 
is atprcsentgarrisoned by three hundred men from Virginia. It is made with 
stoccadocs only, and commanded almost on every side by circumjacent hills ; 
a considerable quantity of military stores, that was left by General Braddock, 
still remain there, and ten of the carriage guns that his majesty was pleased to 
order to Virginia, two years ago, are mounted therein ;" is not tenable agahist 
even a trifling force, should they come with any cannon; and therefore hum- 
bly submit it, whether it might not be a prudent measure to remove his 
majesty's artillery and stores, (though indeed the provisions, we are told, are 
chiefly spoiled) from thence to a place of greater security. 
"Though fort Cumberland may be constructed, for any thing we know, near a 
place proper for the stationing a garrison at, for his majesty's service in gene- 
ral, yet being, as we have been informed, between eighty and ninety miles from 
the settlements of the westernmost inhabitants of this province, and in the 
truth of that information, are confirmed by your excellency's message of the 
1 1th of this instant, wherein you say, ' the distance from fort Frederick to 
fort Cumberland, by the wagon road, is 75 miles,' and consequently the car- 
riage of provisions thither very expensive ; we humbly conceive it cannot be 
reasonably desired, that the people of this province should beburthened with 
the great expense of garrisoning that fort, which, if it contributes immediate- 



Chap. IV. j TO THE TREAT! OF PARIS. :jl)7 

turned the dissensions? between the two houses of Assembly. 
TIip perils of its past situation, had rendered the colony deepl] 
sensible of the formidable power of the French, and of the m> 
portance of removing so dangerous a neighbor. The efforts of 
the English government, for the extinction of the French power 
in Canada, were therefore cordially approved; and the colony 
professed the utmost willingness to accord its quota of assistance. 
Hut new difficulties now arose, as to the mode of raising supplies, 
which endured until the close of the war; and the result was, 
that no further assistance was derived from Maryland in its 

Iy to the security of any of his majesty's frontier subjects, it must be those of 
Virginia or Pennsylvania, who do not at present contribute any thing towards 
the support of it, that we know of. 

"We iin.in-.tand, the most common track of the Indians, in making their in- 
cursions into Virginia (which have boon lately very frequent) is through the 
wild desert country lying between fort Cumberland and fort Frederick, and yet 
u e cannot learn that the forces at fort Cumberland the most of these 

that are in our pay the summer past, have been stationed there, contrary ,we 
humbly conceive, to the law that raised them) have very rarely, if ever, molest- 
ed those savages in those their incursions; from whence we would willingly pre- 
sume their passage is below the Ranges, which troops stationed at fort Cum- 
berland, can witli safety to that fort, extend themselves to; and consequently 
that any security arising from those troops, even to the Virginians who are 
most in the way of being protected by tlieiu, must be very remote, and to us 
much more so. 

"When, from the incursions and horrid depredations of the savage enemy 
in the neighboring colonies, an opinion prevailed, that a fort was nei 
sary for the defence and security of the western frontier of this pro- 
vince, it was thought most likely to be conducive to those ends, to have it 
placed some \\ here near the place fort Frederick is now constructed ; because 
from thenoe, the troops thai might be judged proper to be kept on foot for 
thesecuritj of the frontier inhabitants, migbl baveil in their powet to range 
Lantly in such manner as to protect them against small parties; and in 
tnj con-idc rable body of the enemy should app< ar, or the fori should be 
attacked, the troops might, at a verj irning, be assisted b) the 

inhabit 

M I ol 1 6000 has been expended, in purchasing tbe ground be- 

5 to and > i rederick, and though we have not anj exact 

information what till be wanting to complete it, (if ever it should be 

thought proper i id tbe sum requisite for that pur. 

n apprehensive thai fot i that 

ittack, itca nded without a number of men, larger than 

the province can support, pun Ij to maintain a fortificati 



308 HISTORY FROM THE RESTORATION [Hist. View. 

prosecution. A supply bill to meet the requisitions of the crown, 
was passed by the lower house, in nearly the same form in 
which it was originally proposed, at nine several sessions of 
Assembly, held during this interval; and was as regularly re- 
jected by the upper. The discussions connected with it, ex- 
hibit a high degree of irritation on both sides ; and although 
the details of the system of taxation proposed by the lower house, 
may be considered, by some, as objectionable and oppressive, all 
must admire the courage and constancy with which that house 
adhered to its propositions. Believing that the principles which 
were put in issue by the controversy, admitted of no compro- 
mise, neither the menaces of the crown, nor the official power and 
influence of the province, could seduce it from its purposes. A 
brief notice of the prominent features of the system of taxation, 
thus upheld by that house, will serve not only to illustrate the 
character of that controversy, but also to exhibit the views of the 
colony as to the proper objects of taxation. 

This scheme of taxation was somewhat analogous to the genc- 
ral assessment system, which has, of late years, been so frequent- 
ly the subject of controversy between the two houses of our 
. . Assembly. It extended the taxing power to every 

Characteristic J 3 r J 

features of the species of property, real, personal, and mixed, (ex- 
system sustained l r r J ' ' r ' ' v 

fcy the lower cept household furniture, and the implements of 

house. * .... 

trade and husbandry ;) including all debts due in 
the province, whether due to inhabitants or non-residents; and 
all imported merchandise. Public officers, lawyers, and factors, 
were to be taxed upon their income. The proprietary property, 
in all its forms, came in for its rateable proportion of the tax. 
His quit-rents, his manors, his reserves, and his vacant lands, were 
all made liable to the tax. The most objectionable feature of the 
system, was that imposing a double tax upon non-jurors or papists ; 
and the records of that period justify the inference, that it was 
adhered to, not so much from any conviction of its general pro- 
priety, as for the purpose of reaching particular obnoxious indi- 
viduals, who were high in the confidence of the proprietary. 
The tax on the proprietary quit-rents and reserves, on imported 
merchandise, and on debts due to non-residents; and the double 
tax on non-jurors, were the principal themes of the censure 
lavished upon (his system by the upper house; but it is probable, 



Chap. IV. | TO THE TREATY OF PARIS. 30!) 

their objections lay deeper. The council to the governor, con- 
sisted generally of persons holding lucrative offices, or possessed 
of that species of wealth which hid hitherto been exempt from 
taxation; and the] had \\ ii enough, whilst ihc\ fell for them- 
selves, to complain for others. The mode of assessment and 
collection of the taxes proposed to be raised by this system, 
was as objectionable to the upper house, as the system itself: 
and here the latter were less scrupulous, in revealing their 
objections. It assumed for the lower house a prerogative as to 
money-bills, which the upper had never been willing to concede. 
For many years, the former had claimed the exclusive right of 
originating monej bills, and of appointing and supervising the 
officers entrusted with the expenditure of the public money. 
Acting under this claim, in the supply bills of this period, they 
named the commissioners who were to carry them into effect, 
and reserved to themselves the exclusive right of auditing their 
claims and accounts; whilst they cast the onerous duties in the 
collection of the taxes, upon the proprietary's private agents, and 
tho receivers of his quit-rents, who were required to perform them 
for a small allowance. The privileges here assumed, the upper 
house had always refused to concede upon any terms; and if all 
the other objections to the system could have been obviated, here 
alone was a source of invincible disagreement. 

During the progress of this controversy, the proprietary called 
in to his aid the opinion of the Attorney General, Pratt, (after- 
wards Lord Camden.) Upon most of the subjects in controver- 
Oplnlon of Lord sv, the objections of the upper house were sustain- 

Camden upon 

ihisgystem. ed by th.it opinion. The tax on non-residents and 

imports, was pronounced by it to be clearly improper, and one 
which the mother country Would never endure: and to be ex- 
tremely unreasonable, in requiring the English importer of goods 
into Maryland, to pay a tax for the mere right of trading to the 
province, to which be was entitled beyond the control of the 
provincial Assembly. It was objected to it also, thai if the As- 
sembly could tax the merchandise imported, they might, by the 
tame rule, prohibit it- importation. Had Lord Camden ever 
n-ad the charter of Maryland, before gh ing thie opinion : or did 
lie doubt the efficac] of the charter power to impose dntit on 



310 HISTORY FROM THE RESTORATION [Hist. View. 

imports and exports ? (3(>) He has not noticed the latter: and 
in another part of his opinion, he recommends a reference to the 
charters, for the proper limits of colonial power. The crown 
lawyers of England never gave opinions to impair the commer- 
cial monopoly of England, or to diminish the utter dependance 
of the colonies. The tax on non-jurors, he denounced as violat- 
ing the public faith, and subverting the very foundation of the 
Maryland constitution, and as not to be excused by any thing 
but a well grounded jealousy of dangerous practices and dis- 
affection on the part of the Papists; and the tax on vacant 
lands, as one which ought to be resisted by the proprietary, be- 
cause it was principally levelled at his estate. In regard to the 
nomination of the officers, he maintained, that the right of ap- 
pointing these officers did not necessarily fall to the proprieta- 
ry, under his general charter power of appointing the officers of 
the province : but that the office being created by law, the law 
might provide another mode of appointment. He held, how- 
ever, that the upper house acted rightly, both in claiming a voice 
in the appointment of these officers, and a co-ordinate right in the 
supervision and adjustment of their accounts; and concluded his 
opinion by the following remarkable admonition : " The upper 
house should take care how they admit encroachments of this 
kind, when they are supported by arguments, drawn from the 
exercise of the like rights in the House of Commons here. The 
constitutions of the two Assemblies differ, fundamentally, in 
many respects. Our House of Commons stands upon its own 
laws ; whereas Assemblies in the colonies, are regulated by 
their respective charters, usages, and the common law of Eng- 
land, and will never be allowed to assume those which the House 
of Commons are justly entitled to here, upon principles that 
neither can nor must be applied to the colonies." (37) This 
opinion is here summarily presented, not only as a part of the 
history of this controversy, tending to elucidate the principles 
involved in it, but also as displaying the then immature notions 
of this distinguished person, as to the nature and extent of colo- 

(36) Supra, 163. 

(37) See this opinion at large in 1st Chalmer's Opinions, 262, and the 
Journals of House of Delegates of 23d March, 1760. 



Chap. IV.] TO THE TREATY OF PARIS. 311 

nial riirhis. Lord Camden was :i pun' and enlightened states- 
man, whose name has come down to us in history, identified 
with the advocacy of American liberties. He was one of their 
first, firmest, and most honored champions. So was the peer- 
less even amongst peers, the illustrious Chatham. Yet at. this 
period, Mr. Pitt is found cherishing the scheme of compelling the 
colonies to tax themselves according to the requisitions of the 
crown, as consistent with colonial liberty; and Lord Camden 
earnestly remonstrates against the assumption of the money 
powers of the House of Commons, by the House of Delegates of 
.Maryland, as inconsistent with the being and nature of the lat- 
ter, and not to be tolerated. The true nature of colonial 
depend nice was not yet understood. The character and ex- 
tent of colonial rights had not yet been thoroughly investigat- 
ed. The objects and elficacy of colonial institutions were not 
yet appreciated. It required the coming collisions with the 
mother country, to strike these out. In the general estimation, 
the rights of the colonics were yet wrapped in the swaddling- 
clothes of their infancy: and the interests of a free, widely ex- 
tended, and powerful people, were to be measured by the stand- 
ard adapted to a puny settlement. 

The House of Delegates of .Maryland, alike the House of Com- 
mons, was the only direct representation of the people. The 
upper house was not only independent of the people, as are the 
Efifect of it upon peers; but what was still more objectionable, they 
the lower house. were ji ic mere creatures of the proprietary, "the 
breath of hi< nostrils.'' The. principle, " that the people could 
be taxed only by their assent," had long been as sacred under 
the constitution and laws of Maryland, as under those of England. 
The power of the House of Commons as to money bill-, i- 
claimed a- the incident of this principle, and its mm organiza- 
tion : and " Tht Inn of Parliament," which justifies it. is nothing 
■ore than assumed prerogative for the guard of the principle. 
The analogy was perfect: and the consequence could not but 
follow. So thought the I Ion-. ■ <,r Delegates ; and the opinion fell 
powerless. Ii was oot usual for thai body to rely upon th< 
opinion of others for a knowledge of its own ri [hi "i to bow 
down before the authority ofgreal name-. " \\ .• observi 



31-^ HISTORY FROM THE REFORMATION [Hist. View. 

it, in reply to the message of the governor, submitting the opinion 
ofthe attorney general) your excellency's particular and pathetic 
admonition to us, to avoid the rock on which we have hereto- 
fore split ; and as you have thought proper to give us the opinion 
of his majesty's attorney general, (though given, we presume, on- 
ly as private counsellor to the lord proprietary,) relative to ihe 
two supply bills ; being desirous to pay to it all due regard, we 
cannot but wish, that opinion had been accompanied with the 
state of the facts on which it was founded, especially as we are 
not at present convinced, that the upper house could not have 
assented to those bills, without a breach of their duty, and a 
violation ofthe constitution." (38) 

Peace was at length restored to the colonies, in 1763, by the 
treaty of Paris ; and these dissensions ceased to agitate the 
province. By this treaty, the French power in Canada was 
Treaty of Paris, extinguished, and the Mississippi became the ac* 
knowledged boundary of the British possessions. The effects 
of that treaty upon the civil and political condition of the colo- 
nies, belong to the history of the more momentous controversy, 
in which they were soon to be involved. From this period, the 
colonies had no enemy but the parent country ; and the history of 
this province records only her glorious transition from depen- 
dence to independence. 

The Governors of Maryland, during this period, were John Hart, 
Charles Calvert, Benedict Leonard Calvert, Samuel Ogle, Tho- 
mas Bladen, and Horatio Sharpe. (39) To portray individual 

(38) Journal of House of Delegates, March session, 1760, 

(39) John Hart, who was commissioned governor by the proprietary, 
immediately after the restoration, was succeeded in June, 1720, by Charles 
Calvert, who remained governor until March, 1726-27, when he was superse- 
ded by Benedict Leonard Calvert, the brother of the proprietary. Ill health 
compelling the latter to return to England, he was succeeded in the office of 
governor by Samuel Ogle, in September, 1731, who continued to govern the 
province until the arrival ofthe proprietary himself, in 1732. The proprie- 
tary having visited the province with a view to the controversy then pending 
between himself and the Penns, administered the government in person, until 
June, 1733, when upon his return to England, Mr. Ogle was re-commissioned, 
and acted as governor until August, 1742, when he was succeeded by Thomas 
Bladen, the brother-in-law of the proprietary. Mr. Ogle was again appointed 
governor in 1746-47 ; and acted as such until 1652, when by his return to 



Chap. IV.] TO THE TREATY OF PARIS. 313 

character, is not the purpose of this work ; except 

Governors. .... l 

whore individual acts and motives are involved in 
the transactions of the colony, and are necessary to illustrate 
their true character. The period of which we are treating is so 
far removed from us in time and character, that not only the actors 
and their motives, but even the transactions and the results 
which belong to it, have in a great degree ceased to interest. 
When events are forgotten, the individuals connected with them 
cannot hope to be remembered. We have no knowledge of any 
memorials of that day, but the Assembly and council transactions ; 
and even tradition is mute. The general condition of the pro- 
vince was one of tranquillity and prosperity; and the occasional 
differences between some of these governors and the Assemblies, 
do not furnish decisive indications of the character of the former. 
Their private virtues, and their faults, have alike passed away 
rvith the age in which they lived ; and their memory is in a name. 
Yet Ca:sar has no more ! 

The population of the colony increased rapidly during this 

era. In 1733, the number of taxable inhabitants was 31,470. (10) 

In 1748, the number of inhabitants was 130,000, including 

94,000 whites and 30,000 blacks ; in 1756, it had 

Population. 

increased to 154,188, including 107,963 whites, and 
t().vi-25 blacks ; and in 1701, it amounted to 104,007, including 
114,33-2 whites, and 49,675 blacks. (41) The inducements held 
out to emigrants were much greater than during the period of 
the royal government. The restoration of the proprietary, iden- 
tified his private : rights with the public policy; and these rights 
being no longer embarrassed by the Assemblies or the agents of 

England, the government devolved upon Benjamin Taskcr, then president of 
the Council, who continued to administer it until the arrival of Horatio 
Bnarpe, the turn governor, in March, 17">3. Mr. Sharpe remained in the 
gorernmenl until August, 17G8, when he was superseded bj Robert Bden, 
the la^t governor under the proprietary dominion. 

(40) Tin- UituUL .. :.i this period, were designated by the ads of I7l. r >, chap. 
15th j ami 1725, cbap. 4th. They included all vmhs above the age of lii, 
except ben< need clergymen and paupers ; ami all female negroes or mulat- 
Cqoncll Proceedings <>f 1733, Liber M, 99 to 94. 

Ml) Reports of the governor and oounoil of Maryland, i" the oommtaieiif 
bm of trade, in L749, 1756, and 1701. Coon. Pro. of L3tb December, IT49j 
of 23d August, 1766, I. ili. TKaml WS, 117;..f 17GI, in I.ih. TK and \\ S, 318. 
Ill 



314 HI6T0RY FROM THE RESTORATION [Hist. View. 

the crown, as during the royal government, the lands of the 
province were always open to grant upon favorable terms. The 
character and stability of the government, the value of the staple 
commodities of the colony, and the fertility of the ungranted 
lands, all concurred to invite the industrious and enterprising 
emigrant. But besides the voluntary immigration during this 
period, there was another fruitful source of population, the influx 
of which, although at the time deeply deplored by the inhabi- 
tants, contributed largely to the increase and strength of the 
colony. The number of convicts imported into Maryland 
during this era, must have amounted, upon the lowest estimate, 
to fifteen or twenty thousand. They were imported by private 
shippers, under a contract with the crown ; and sold into servitude 
in the colony, for their term of transportation. The want of labor 
is always sensibly felt in a new country, and particularly in those 
operations which are necessary to prepare it for culture ; and in 
the representations of former periods, it is frequently alluded to, 
as one of the principal difficulties encountered by the colonists. 
The number of convicts now thrown into the province, removed 
this inconvenience ; and although the servants thus obtained, 
brought with them the brand of infamy, as the voucher for their 
morals, they were generally inured to labor, and endowed with 
bodily energies, equal to the severe task of opening and cultivat- 
ing a new country. They soon became amalgamated with the 
ordinary population ; and when their term of servitude had 
expired, many of them became highly useful and reputable citi- 
zens, and some rose even to the most honorable distinctions. 
The pride of this age revolts at the idea of going back to such 
as these, for the roots of a genealogical tree ; and they, whose de- 
light it would be, to trace their blood through many generations 
of stupid, sluggish, imbecile ancestors, with no claim to merit 
but the name they carry down, will even submit to be called 
"novi homines," if a convict stand in the line of ancestry. Yet 
certain it is, that whilst this class of population supplied the 
colony with the labor which it most wanted, it included many, 
who lived to emerge from the degradation of their servitude, to 
atone for their early follies and vices, to win for themselves again 
a fair and honorable name, and even to transmit honor to a vir- 
tuous offspring. Like the " Clifford" of romance, they lived to 



Chap. IV.] TO THE TREATY OF PARIS. 315 

prove, that even the spirit, early and long educated in the ways 
of vice, is not incurable ; and that virtue's paths, though late 
regained, may yet be paths of pleasantness and peace. Super- 
cilious morality may condemn the exhibition of such characters; 
but we shall be pardoned for saying, upon the experience of the 
colonies generally, that men thus rescued from crime, and enrol- 
led as citizens, did contribute to the strength and moral power of 
the province. 

The commercial condition of the colony during this period, 
exhibited all the features of abject dependence. The restrictive 
system, had accomplished all its purposes, and had fully establish- 
CommcrceofUie eu " HDr England the monopoly she desired. The trade 
of the province in every valuable import or export, 
was conducted exclusively with England, and in English vessels. 
Tobacco was still the principal export of the colony, and the 
chief source of its wealth. In most of the statistical accounts of 
that period, the quantity of tobacco annually exported from 
Maryland and Virginia, is stated in the aggregate, so as to ren- 
der it difficult to determine the exact quantity exported from 
each. In 1731, the annual export of this article from the two 
colonies to Great Britain, was estimated at 60,000 hogsheads of 
000 pounds each. (42) A later, and perhaps a more accurate 
estimate, in 1740, predicated upon the information of the En- 
£r 1 i .- h merchants engaged in this trade, rates it at 30,000 hogs- 
heads of about 900 pounds. (43) The only estimate made in the 
province as to this article of export, which can be relied upon 
as accurate, is that contained in the report made by its governor 
and council, in 1761, to the commissioners of trade, which repre- 
sents, that there were about 28,000 hogsheads shipped annually, 
from Maryland to England, valued at £140,000. It appears also 
from this report, and the antecedent reports of 1749 and 1756, 
coming from the same source and under similar calls, that the 
trute in tobacco was carried on exclusively with Great Britain 
and in English vessels. The other exports of Maryland, during 
this period, were wheat, lumber, corn, flour, pig and bar iron in 
small quantities, skins, and furs: but these were inconsiderable in 

(42) 3d AnderoorTs Commerce, 423. 

(43) Same, 496 and 544. 



31G HISTORY FROM THE RESTORATION [Hist. View. 

amount and value. The total value of her exports, exclusive of 
tobacco, was estimated, in 1749, at £16,000 sterling; and in 
1761, £80,000 currency. Her imports were drawn almost exclu- 
sively from England ; upon which she still depended, for nearly 
every thing but the food necessary for sustenance. The value of 
her English imports, was estimated, in 1756, at £150,000 annu- 
ally ; and in 1761, at £160,000. Besides these, she imported 
salt from the Portuguese Islands, and a small quantity of wine 
from Madeira. She carried on also a small trade with the New 
England colonies in bread stuffs. The state of her shipping, 
during this period, manifests the same degree of commercial 
dependence. The trade with England was carried on exclusively 
in English vessels; and according to the estimates of the colony, 
employed, in 1748, 200 vessels of 12,000 tons burthen ; in 1756, 
180 vessels of 10,000 tons ; and in 1761, 120 vessels of 18,000 
tons. The whole shipping of the colony, as estimated in 1756, 
was but 60 vessels of about 2000 tons burthen in the aggregate, 
navigated by about 480 men ; and in 1761, in consequence of the 
French war, it had decreased to 30 vessels, of 1300 tons burthen 
in the aggregate, employing 200 men ; and in its employment, it 
was in a great measure limited to the West India trade, and 
that with the northern colonies. (44) 

In manufactures, the colony had made but little progress, ex- 
cept in the production of Iran. As early as 1749, 

Its manufactures. _ , . _ 

there were eight iurnaces and nine torges, em- 
ployed in this branch of manufacture : and they were still in ex- 
istence and operation at the close of this era. The quantity of 
iron annually manufactured in them, as estimated in 1761, was 
2500 tons of pig iron, and 600 tons of bar iron. For almost 
every other article of manufacture, the colonists depended en- 
tirely upon England. This was the condition in which the En- 
glish government desired to retain them : and the reports from 
the province to the commissioners of trade during this period, 
betray, every where, the knowledge of the jealousy with which 
the former regarded all attempts to establish manufactories in 

(44) These facts relative to the statistical condition of Maryland at this 
period, are collected from the several reports of her governor and council, 
to the commissioners of trade in 1749, 1756, and 1761, referred to in note 43 
of this chapter. 



Chap. IV.] TO THE TREATY OF PARIS. 317 

the colonies, .Hid the desire to allay it. Hence all these reports 
concur in Baying, that no such attempts had been made or 
were ahout to he made in the province, except for the production 
of iron. Their representations as to manufactures, might therefore 
be received with some degree of distrust, as coming from persons 
anxious to conceal what they had accomplished in the establish- 
ment of them ; if they were not sustained by the statements of the 
\--<inbly at a later period, when fresh from the victory over the 
Stamp Act, and in a message representing the necessity of ma- 
nufacturing for themselves — " We can only say (says the lower 
house, in ]?()?) what is very generally known, that nothing has 
been set up in this province which deserves the name of a ma- 
nufactory. It is true, that several families make some of their 
coarse cloathing within themselves, but in so few instances as 
not to deserve notice, and that without any encouragement from 
public or private subscriptions, except the small bounty lately 
paid by the County Courts upon a few pieces of linen. Your 
Excellency may well report, from your own sight and know- 
ledge, that the inhabitants of the province, from the first to the 
lowest rank, are generally clothed in British manufactures." (45) 
Such was Maryland when began the struggle for her political 
liberties, originating with the Stamp Act, and terminating in her 
independence. From the proprietary restoration, her progress 
had been rapid, when contrasted with that of the preceding era. 
A population of little more than thirty thousand persons had 
been swelled to one of more than one hundred and sixty thou- 
sand. Adventurous industry had carried that population to 
every quarter of the province, and with it the arts of civilized 
life. The colony was no longer a feeble settlement on the out- 
skirts of the wilderness. It was now the undisputed master of 
the province, and the occupier of the greater portion of its soil ; 
and there were none to make it afraid. The savage power with- 
in its limits was extinct, and the enemy was removed from its 
borders. Industry, frugality, and simplicity were the severe vir- 
tues of the colonists; and contentment and prosperity marked 
their condition. Enthralled as was their commerce, and depen- 
dent as they were upon the mother country for many of the sup- 

(45) Journal of House of Delegates of Cth December, 17CG. 



318 HISTORY, &c. [Hist. View. 

plies of life, they had now internal resources upon which they 
could rely in cases of emergency, and the power and energy to 
apply them when occasion might require. Their connexion 
with the parent country, with all its restraints, had hitherto 
been one of harmony, because one of mutual benefit: and in 
all that related to their liberties, it left them freemen, dwelling 
under free institutions. Submission to tyranny they had never 
known; and the right of self government, they had always claim- 
ed and enjoyed as their birth-right. That right was now to be 
assailed : and the history of their struggle for its preservation 
will show how justly they appreciated it, how well they deserved 
to enjoy it. 



CHAPTER V. 



HISTORY OF MARYLAND FROM THE PASSAGE TO THE REPEAL 
OF THE STAMP ACT. 

The acquisitions of the treaty of Paris, gave to the colonial 
possessions of the English government in North America, an 
r^u. of the extent and security hitherto unknown in their his- 
weaty of Far*. ^ The rival power f France, which had so 

long struggled for the mastery on this continent, was now re- 
moved from their borders. Its savage allies, who, under its 
incitements, had so long menaced, and had so often carried 
their ferocious and desolating warfare into the colonies, were 
now humbled and intimidated. There was no longer the strug- 
gle for ascendancy between two formidable powers, to lure them 
into the unceasing contests which it excited, to stimulate their 
ferocity by the rewards which it proffered, and to sustain them 
even in the moment of defeat by the hope of protection. The 
events of the recent war, had at once removed the principal pro- 
vocatives to their incursions, and had taught them to respect 
and dread the power they were now singly to encounter. The 
border defences, which had been erected to meet the necessities 
of the moment, were more efficient than they had hitherto been; 
and the loner endurance of the war, had acquainted the colonists 
with their own resources, and had familiarized them to all the 
expedients of self protection. Whilst thus every thing con- 
rum .,l to promise uninterrupted peace and prosperity to the co- 
lonic, the power of the English government over them, seemed 
to be established on the most durable foundations. There never 
was a period, at which the English crown appeared to have a 
firmer hold upon its colonies. Planted principally by English- 

mpn the inhabitants of the latter Still looked With venerat.on 
upon the mother country, as the home of their forefathers, and 



320 HISTORY FROM THE PASSAGE TO [Hist. View. 

the land whence they had drawn their free principles and institu- 
tions. The full possession of English liberties had ever been 
their highest pride and boast; and the constant appeal to them, 
and vindication of them against arbitrary power, had naturally 
made the enjoyment of these liberties their first and highest aim. 
The state of commercial dependancc upon England, to which 
they were subject, had long been familiar to them ; and it was, 
at this period, one of the very causes which contributed to se- 
cure their attachment, and rivet upon them their colonial condi- 
tion. Aided by other causes, it tended to restrict the intercourse 
of the colonies, social as well as commercial, to each other and 
the parent country. The golden ties of commerce, often more 
difficult to be severed than those of blood, linked them together 
in a connexion, which is generally one of harmony, because it is 
one of mutual benefits ; and the social intercourse which it pro- 
moted, threw over this connexion of interest, the bonds of affec- 
tion. With foreign nations, their correspondence was very li- 
mited; and there existed few causes to increase it, or to create 
the wish for its enlargement. In their colonial history generally, 
they had known the subjects of foreign nations, principally, as 
the enemies of their nation, the depredators upon their com- 
merce, and the allies of their savage foes. Thus did interest, 
affection, and pride, all conspire to sustain the dominion of 
England over her American colonies. The results of the late 
war, signalized as it had been by the complete triumph of the 
British arms, gave fresh vigor to these causes. To England, it 
was a struggle for power ; to the colonists, a contest for the se- 
curity of their homes and their families. Yet, however different 
their views and interests, they had a common foe ; they had 
warred side by side against that foe ; and their united efforts had 
accomplished for both the victory they desired. Mutual grati- 
tude always marks the first moments of such a triumph; and 
often, of itself, lays the foundations of an enduring attachment. 
England felt and acknowledged her gratitude to the colonies, for 
their prompt and efficient assistance ; and the latter remembered 
her, at that moment, only as the parent who came to preserve 
and protect. In the midst of general rejoicing, her colonial 
subjects were willing to forget all the misrule and oppression of 
the past; and it now required only a kind and generous policy 



Chap. V.J THE REPEAL OF THE STAMP ACT. 32] 

for the future, to have established Iter dominion, beyond the pro- 
bability of overthrow, perhaps for ages. The wise, and, to us, 
the fortunate dispensations of Providence, ordered it otherwise. 
However parental her conduct might have seemed to the colo- 
nists, the mere internal happiness and security of the colonies 
were a secondary consideration with the English 

The preserva- . . . , 

tion of the government. With her, in the prosecution ot the 

French power in 

Canada favora- war which had just terminated, her own aggrandize- 

ble to the liber- 
ties ofthecoio- nient, and the prostration of a hated loc, between 

nies. . 

whom and her there subsisted a rivalry and enmity 
of centuries, were the primary objects. The establishment of 
that foe on the borders of her colonies, was also the most serious 
obstacle to her designs against the liberties of the latter. It oc- 
casioned, for nearly a century, public distresses, and individual 
calamities, at the very recital of which we shudder. Yet, if we 
look more narrowly into its consequences, we shall probably 
discover, that it contributed largely to suspend the designs of 
the English crown and parliament against the colonies, until they 
were adequate to their own protection. Its continued encroach- 
ments required constant vigilance and resistance. For the 
means necessary to counteract those, the English government 
was obliged to rely mainly upon the patriotism and energy of 
her colonies; and these, by gentleness, she might win to her 
aid, but could not compel by tyranny. However licentious she 
mi^lit deem the liberties, which had grown up in them unnotic- 
ed, she was obliged to respect them in the moment of emergen- 
cy. Any deliberate attempt to crush them, would not only have 
paralysed the energies which she needed ; but might have thrown 
her possessions, once filled with disaffection, as willing or suh- 
missh e \ ictiras, into the arms of her rival. 

In the reigns of the lir-t James and Charles, the prerogatives of 

the crown, as exercised over rhe English colonies, n-pocted no 

limits but those of its own discretion ; l.ut these colonies were 

then to., inconsiderable, to excite its jealousy or 

Decree of ro. 

lom.i . l «-[».- r i - attract its oppressions. The civil wars gave them 

ItM 

me to i xpand and mature; and ilie restoration of 

Charles II.. found them firmly established, and with 

a commerce sufficiently developed, to tempt by the probable 

benefits of its exclusive enjoyment. It was now n lit subjecl for 

II 



322 HISTORY FROM THE PASSAGE TO [Hist. View. 

monopoly; and aided by the Parliament of England, this 
monarch succeeded in establishing a system of restrictions upon 
the commerce of the colonies, which made them feel, to use their 
own expressive language, " that they were but hewers of wood 
and drawers of water unto England." It was not enough to 
monopolise it. The next step was to impose duties upon it, as 
pretended auxiliaries to its regulations. The history and objects 
of these acts, and the reception with which they met in the 
colonies, have already been described. The colonies were yet 
too feeble for effectual resistance ; and in spite of all their discon- 
tents, their evasions of the system, and their refusals or delays in 
carrying it into effect, it was ultimately rivetted upon them. One 
step further, and their bondage was perfect. It was now only 
necessary to establish the power of the crown, or of the English 
parliament, to levy taxes upon them without their consent, for 
the mere purpose of raising a revenue ; and all the securities of 
their charters were at an end. Their colonial governments might 
have retained their ancient forms ; and have carried with them 
all their accustomed powers of internal administration ; but once 
confessedly subject to the supremacy of another government, 
that knew no limits but its own arbitrary pleasure, which acted 
under no responsibilities to the people it controlled, and which 
felt none of the burdens it imposed, where would have been their 
efficacy ? Stripped of the very first object of government, the 
power of self protection, they would have dwindled into petty 
municipalities ; and their subjects would have been freemen, 
by the grace and permission of England. 

Now was the period to have asserted and established this 

supremacy. The resistance to it, in the colonies, would most 

probably have been as ineffectual, as that elicited by the trade 

acts. Once established and familiarised to them by 

The further ex- . . , 

tension of it, sua- its exercise, each day would have diminished the 

ponded until the 

Revolution, by power and the will to resist; and the nineteenth 

the condition of * 

the mother coun- century might have found us, the Helots of England. 
How different the spectacle of a free and happy repub- 
lic already, mature in every thing that gives power and renown to 
nations, or prosperity and contentment to a people ; and already 
diffusing its moral influences over the world. The children of 
Israel, in the chosen land, looked back upon the bondage of 



Chap. V.] THE REPEAL OF THE STAMP ACT. 323 

Egypt, and the dangers of the wilderness ; and bowed in grati- 
tude to the Providence which had conducted them in safety 
through all. So may these United States of America, to their 
sojourn amidst the difficulties and thraldom of colonial existence. 
If they see not the cloud by day, and the pillar of fire by night, 
they may behold every where, in their colonial history, the mani- 
festations of an overshadowing Providence, for their guidance to 
independence. No where is it more conspicuous, than in the 
seemingly untoward events, which indirectly suspended the full 
assertion of English supremacy, until the minds and resources of 
the colonists were matured for effectual resistance. The com- 
mercial regulations, introduced and established in the reign of 
Charles II., were but the advance guard of this supremacy. The 
difficulties encountered by that monarch, in carrying these into 
full effect, combined with the internal dissensions, which agitated 
England during the latter part of his reign, to engross his whole 
attention. His weak, yet arbitrary successor, ascended the 
throne, with views as hostile to the liberties of the colonies ; 
but without the sagacity of his predecessor, in the choice of 
means for their accomplishment. Charles effected his purposes 
under cover of Parliament ; and his system was that of sapping. 
James preferred the open assault; and that to be carried on by 
prerogative alone. His open and avowed efforts for the destruc- 
tion of all the chartered governments, and the means by which 
they were frustrated, are familiar events in our history. Fortu- 
nately for the colonies, they were identified with attempts as 
ho-tile to the religion and liberties of England; and instead of 
reaching their purposes, they lost him his crown. 

The reign of William, was ushered in by circumstances pecu- 
liarly propitious to the colonies. In the struggle which even- 
tuated in seating him on the throne of England, they had, in 
cm iii—ii win almost every instance, gone in advance of the 
Hon "f 'li" '.'mi 1 .!: mother country. They spared him all the dillicul- 
583 ,1( s :i "' 1 responsibility of their subjugation to his 
■' l,u -' • dominion. Without waiting for the fuu of the 
crown, they had taken their governments into their own bands, 
and nothing was lefl for William, but t<> receive the spontaneous 
their loyalty and submission, rendered doublj grateful l»y 
the unanimity and affection which characterised them. Policy 



324 HISTORY FROM THE PASSAGE TO [Hist. View. 

came in, to strengthen these claims upon his gratitude; and to 
recommend to him, an administration of the colonies, protective 
of (heir rights and liberties, as the best mode of perpetuating his 
own dominion. If more wore wanting, it was found in the now 
formidable establishments of the French in Canada, and in the 
necessity of summoning all the colonial energies, to resist their 
encroachments. From this period^, until 1763, England was 
engaged in an almost uninterrupted struggle for her possessions; 
and she found it necessary, to accommodate her course towards 
the colonies, to the exigencies of her condition. In *\e various 
wars which occurred during that interval, she had but one mode 
of raising men and money from the colonies, for their prosecu- 
tion. The crown commanded the assistance of the colonies, in 
the prosecution of its plans against the common enemy; and in 
general, prescribed the quota of men or money to be furnished by 
each ; but here its power stopped. It remained for the colonies 
to grant, this assistance through their Assemblies ; who alone 
determined the manner, in which it should be levied. To them, 
the requisitions of the crown were about as imperative, as the 
recommendation of the old confederated government to the 
states. They were regarded as requests, and not implicitly 
obeyed as commands. The colonial Assemblies concurred in 
them, at the time, and in the manner most agreeable to them- 
selves ; and the consequence was, that very frequently they were 
not obeyed at all. The history of Maryland furnishes several 
instances of such a result, to which we have already adverted; 
and which serve, fully to illustrate the general character of 
English supremacy, as exercised over the colonies during this 
period. The plans of the English government were often frus- 
trated, by the tardiness or refusal of the colonial Assemblies to 
concur in its requisitions; yet neither the crown, nor the Parlia- 
ment, were willing, even in the full view of these inconveniences, 
to venture upon the dangerous expedient of substituting their 
own taxation. 

Yet the history of their transactions abundantly shows, that 
they longed for the establishment of a supremacy over the 
colonies, which would enable them to direct their operations at 



Chap. V.] THE REPEAL OF THE STAMP ACT. 305 

pleasure. The propositions made in Parliament 

Entire suprcma- 1 

By, the constant ' m 17lll and 1711, to destroy the charter and pro- 

Min of the En- J ' 

(Uafa govern- prietan goi n niin nt a ; a ml the- plan of colonial union 

incut. r * ° ' 

proposed by the English government, in 17-").'}, 
which we have already described, all aimed at the same ohject. 
Whatever the ostensible reason accompanying them, whether 
professedly projected for the better regulation of the trade, or the 
more efficient defence, of the colonies ; at bottom, they were but 
so many designs to put thorn in the uncontrolled power of 
England. A more dangerous expedient than all, was that of the 
bill introduced into Parliament, in 1748, proposing to give the 
king's instructions the force of law, and to make them impera- 
tive upon the colonies. To the vigilant and unyieldino- resis- 
tance of the latter, and the power which their peculiar situation 
gave them over the English government, may we ascribe the 
defeat of all these propositions, and not to her tenderness or 
justice. What her tenderness and justice were, when she 
believed herself to be no longer under the control of circum- 
stances, the events following the peace of 1763, strikingly 
illustrate. " Theie wore not wanting some (says Mr. Pitt, 
in his celebrated speech upon the repeal of the stamp act,) when 
I had the honor to serve his majesty, to propose to me to burn 
my fingers with an American stamp act. With the enemy at 
their back, with our bayonets at their breast, in the day of their 
distress, perhaps the Americans would have submitted to the 
imposition; but it would have been taking a very ungenerous 
an. I unjust advantage of them." Mr. Pitt was mistaken, both in 
the probable result, and in the reasons which stayed the attempt. 
It was the danger of the attempt, and not the injustice of it. 
Hispredi Mr. Walpole, who maintained that every thing 

had it- price, made the liberties of the colonies an exception ; 
and contenting himself with the benefits of their commerce, he 
1011-ly remarked, that he would leave the taxation of the 
Americans to some of his successors, who had more courage, 
ami less regard for commerce. 

The peace of I7i"»:5. removed tin-- obstacle, and every proba- 
bility of its recurrence. The colonial possessions of England 
toftbeuia were now deemed secure from all foreign aggres- 

w»r upon Uiu , . ... . 

ion ind the transactions, which gave then 



32G HISTORY FROM THE PASSAGE TO [Hist. View. 

curity, entitled her colonies to her highest gratitude. Now came 
the time to display her tenderness ; and the earliest exhibition of 
it, was the kind resolve of her parliament, to take the taxation 
of the colonies into its own hand. The conjuncture was deem- 
ed most favorable for the purpose. Foreign interruption being 
removed, it would be but a single-handed contest between her 
and her colonies ; in which, the latter, beset by internal difficul- 
ties and dissensions, could not long withstand her unbroken 
force. Such resistance, however, was not even contemplated 
by her ministry. Murmurs and disaffection might rise high; but 
the appeal to arms, they deemed a chimera. In estimating the 
power and resources of England, they overlooked those of the 
colonies. The struggles of half a century, had revealed to the 
latter their own powers and resources, and had familiarized them 
to self dependance. The privations and calamities incident to 
these struggles, had nurtured the free and adventurous spirit of 
their people, and had trained them to habits of industry and fru- 
gality, the best promoters of public virtue and liberty. The 
right of internal taxation, which they exclusively claimed, was 
sustained and consecrated by its long enjoyment; and their past 
triumphs in its defence, were but so many incentives to its future 
protection. 

There was no colony of English America, in which the claim 
of the inhabitants, to exemption from all taxation not sanctioned 
Sentiments of by their assent, was more familiar than in Maryland. 
Maryland as to It was one of the fundamental principles of their 

the right of tax- . . , , . , . , . 

ation. proprietary government, incorporated with it by law 

in its very infancy ; (1) and it was constantly extended by its 
Assembly, even to every act of the proprietary administration, 
the indirect consequence of which was taxation. The vigilance 
with which its Assemblies guarded this right, and their constant 
assertion of it against every thing which even indirectly tended 
to its infringement, gave to it the character of an indisputable 
privilege. The terms of their charter, to which we have already 
adverted, in declaring them entitled to all the liberties of English 
subjects, and exempting their persons and property, by express 
covenant of the crown, from all taxations or impositions of any 

(1) Act of 1650, chap. 25 ; and supra, 160. 



Chap. V.] TIIH REPEAL OF TIIK STAMP ACT. 327 

description under its authority, wore held by thorn to be effectual 
bars to the taxation of England. ('I) The encroachments upon 
tbia exemption, by the trade acts, were very reluctantly submitted 

to; and their acquiescence in them, was owing to the circum- 
stances of the times, and not to their relinquishment of the ex- 
emption. Still these were not purely and properly acts of taxa- 
tion. They had, at least, for their cover, the regulation of com- 
merce; and they were not pressed to such an extent, as to indi- 
cate, that their sole object was revenue. The sentiments of the 
people of Maryland, at that very period, are fully exposed, in a 
letter written by Mr. Nicholson, then governor of Maryland, in 
August, 169S, to the Council of Trade in England. "I have 
observed, (says he,) that a great many people, in all these pro- 
vinces and colonies, especially in those under proprietaries; and 
the two others, under Connecticut and Rhode Island, think that 
no law of England ought to be in force and binding upon them 
without their consent ; for they foolishly say, they have no re- 
presentatives sent from themselves to the parliament of England; 
and they look upon all laws made in England, that put any re- 
straint upon them, as great hardships." (3) During the con- 
tinuance of the royal government their old institutions were still 
preserved; and the levies, which the crown asked, were still ob- 
tained through their Assemblies only. The restoration of the pro- 
prietary removed them further from the operations of the crown; 
and tin' experience of every year, made their claim to exemption 
more familiar and unquestionable. The very exercise of powers 
adverse to it, was so antiquated as to have become a novelty. (4) 

(2) Supra, 163. 

(3) Chalmers, 443, note 56. 

(4) It may be true, as is remarked by Judge Marshall, " that the degree 
of authority, which might l>c rightfully exercised l>) the mother country orer 

lionise, bad not Italy defined before thi if the stamp 

act." It may also be true, that the power of parliament had been previously 
exercised over tin m, b) statutes, introducing regulations of a purely internal 
character i and that the distinction, denying t" parliament the powers of 
inti-mal regulation, was not sustained bj precedent. Vet it i> most certain, 
that the ri^ht now claimed fur it, a/imposing an iniirnaltdx upon tin coUmiu 
per the mere purpose of revenue, vru entire]] norel and unprecedented. Mr. 
Burke has presented the proper character of the previous < 
the parliamentary power, relied upon a- analogous to that attempted by 



JfcJS HISTORY FROM THE PASSAGE TO [Hist. View. 

The experiment of parliamentary taxation, which the English 
government were now about to make, had the usual fig-leaf of 
Pretcxta for the arbitrary power, to conceal its harshness. The ex- 
stamp tax. penditures of the late war had added largely to the 
already overgrown national debt. That war had been prosecut- 
ed for the protection of the colonies, and had terminated in 
great advantage to them. They were populous, prosperous, and 
wealthy, and could well afford to sustain a portion of the public 
burdens imposed for their benefit. To hold them exempt from 

the stamp act. After passing in review, the tenor and objects of the 
various statutes relative to the commerce of the colonies, he justly remarks : 
" This is certainly true, that no act avowedly for the purpose of revenue, and 
with the ordinary title and recital taken together, is found in the statute 
book, until the year 1764. All before this period stood on commercial regu- 
lation and restraint. The scheme of a colony revenue by the British autho- 
rity appeared, therefore, to the Americans in the light of a great innovation." 
Speech on American taxation, 1st Burke's Works, 454. The argument from 
precedent, is also very happily answered by Mr. Dulany, in his celebrated 
pamphlet against the stamp act, in which he clearly demonstrates, that the 
statutes relative to the commerce of the colonies, the statute 9th Anne, esta- 
blishing a general postoilice ; the statute 5th, George 2d, making lands liable 
for the payment of debts ; and the mutiny act, during the French war, all rested 
upon, and were justified by considerations very different from those, by which 
the stamp act was sustained. Dulany's Considerations, &c. 34 to 40. 

Exemption from the taxation of England, for the mere purpose of revenue 
and not sanctioned by their assent, was therefore a familiar principle in the 
colonies. It had not as yet been directly violated ; and it would therefore seem 
an idle task, to wade through the colonial records, for explicit denials of a right 
which had not yet been claimed and exercised. The respective colonial 
legislatures, were not only the depositaries of the taxing power, under the 
colonial governments generally, but also the instruments, by which alone, 
the mother government had ever directly obtained colonial revenue for any of 
its purposes. The crown had always appealed to them, for the grant of such 
revenue ; and although its requisitions were frequently disregarded, it had 
never ventured upon another mode, but continued to weary the refractory 
Assemblies with its remonstrances and commands. However they might 
have differed about the obligations of the Assemblies, to obey implicitly 
the requisitions of the crown, yet the course, both of the crown and of the 
Assemblies, seems to have proceeded always upon the notion, that the right of 
internal taxation resided exclusively with the latter. At least, it planted the 
conviction of this right in the breasts of the colonists ; and left them without 
the apprehension, that it was to bo attacked. Being thus a constantly exer- 



Chop. V.] THE REPEAL OF THE STAMP ACT. 3><J 

taxation, was tu impair the sovereignty of England, l>y placing 
it at the mercy of her colonies. Such was the general tenor of 
the arguments which paved the way to the design ; and they 
carried with them appeals to the pride and interest of the 
English nation, admirably calculated to enlist its concurrence. 

The mode of making the experiment adopted by the ministry, 
manifested much sagacity. The associations, which the very 

cised and acknowledged power, we would not expect frequent explicit avowals 
of it to demonstrate its existence, nor rely upon these as the fust indications of 
the belief of its existence. Yet Judge Marshall has referred to acts of thelegis- 
paturo of Massachusetts and New York, passed between 1622 and 1700, as if 
they were novel assertions of this exclusive right. 2d Marshall's Life of 
Washington, 71. And Mr. Burke, in his History of Virginia, produces some 
much earlier recognitions of it in that colony, as if to give the latter prece- 
dence in this generous rivalry. The fact is, however, that the colonists 
generally, had brought the idea of the right with them, as a consecrated prin- 
ciple of English liberty ; had incorporated it with their institutions ; and had 
generally enjoyed it without interruption from the crown ; and these very 
avowals of it, instead of being discoveries of political truths, were mere- 
ly :i-sertions of what were deemed established principles. Hence, in one of 
the very instances cited by Mr. Hurler, which is contained in the representa- 
tions of the agents of Virginia to the crown, in 1C7G , whilst the agents assert 
the right of that colony to bo exempt from taxation not sanctioned by their 
assent, they rely upon it as a then generally acknowledged colonial right. 
" They state, that neither his majesty, nor any of his ancestors or predeces- 
sors, have ever offered to impose any tax upon this plantation, without the 
consent of his subjects there ; nor upon any other plantation, however so 
much less deserving, or considerable to his crown. New England, Maryland, 
Barbadoes, &c. are not taxed, but by their own consent." 3d Burke's 
Virginia, 283. 

There is then but little room for rivalry, in contending for the honor of 
originating or sustaining this principle ; but if there were, there is no colony 
to which Maryland would yield the palm. The taxation of the crown was 
excluded, both by the. express words of her charter, and the uninterrupted 
practice of the colony, fro, n the very period of colonization. The taxing 
power, a^ granted by the charter, couldbc exercised "only by the advice and 
assent of the freemen, or a majority of them ;" and that every possible secu- 
rity might be thrown around this right, it was expressly declared by the law 
of the province, in 1 650, That no subsidies, aids, customs, taxen, oi impo* 
ii be laid, :, upon the freemen of the 

provin u merchand , or chattels, without the consent oi 

freemen, their deputii , oi a majority of them, first had ftnd declared in a 
General A .-.I mbly oi ti. , 
12 



330 HISTORY FROM THE PASSAGE TO [Hist. View, 

mention of the stamp tax at this day brines to our 

Policy in the . J & 

manner of ha minds, have rendered its name as odious as that of 

imposition. . . 

the excise, Yet it derives this, its odious charac- 
ter, not from the manner of its operation, but from the oppres- 
sive designs which it covered. It is identified, in our history, 
with the first deliberate effort of the English parliament to pros- 
trate the colonial liberties ; and it is detested, as the first weapon 
of its tyranny. Yet the tax itself operated indirectly ; and was 
stripped of all that machinery of collection, which oppresses 
more than the tax itself. It was a well gilded pill ; but the colo- 
nists, struggling against the principle, were not to be conciliated 
by the mode. It was proposed, too, with a degree of caution in- 
dicating that the English ministry, infatuated as they were, had 
yet wit enough to see some hazard in the experiment. The 
minds of the colonists were first to be prepared, and the first 
burst of indignant opposition suffered to pass by, before the tax 
was actually imposed. With a view to this, Lord Grenville, 
under whose ministry the plan was matured, assembled the 
agents of the colonies, in the winter of 1763-G4, and announced 
to them his intention to propose, at the next session of parlia- 
ment, a duty on stamps, for the purpose of raising a revenue 
from the colonies. He informed them, that his object in appris- 
ing them of his intentions at that early period was, to enable 
them to suggest any other duty, as a substitute, which might be 
deemed more agreeable ; and he desired, that they would consult 
the wishes of their respective governments upon that subject. (5) 
The session arrived ; and the ministry, not ready for the onset, 
were content with the passage of a resolution, declaring, "That 
Preliminary * l m ig nt De proper to charge certain stamp duties 
English 63 niiia° m tnc colonies;" and having put forward this, as a 
try - feeler for the sentiments of the colonies, the fur- 

ther consideration of the subject was postponed, at their own in- 
stance, until the next session of parliament. Professing the utmost 

(5) 1st Franklin's Works, 204 ; 1st Gordon's America, 111 ; 1st Bissett's 
Reign of George 3d, 290. Mr. Grenville merely offered them the privilege 
of finding a substitute, as an object of parliamentary taxation ; and not the 
privilege of taxing themselves, to raise the sum required. Mr. Burke ex- 
plains the true nature of the offer, in his celebrated speech on American 
taxation. — 1st Burke's Works, 402- 



Chap. V.] THE REPEAL OF THE STAMP AC T. 331 

desire to consult the convenience and good will of the colonics, 
they styled this postponement "an act of complaisance to them, 
which was intended to give them an opportunity to provide some 
substitute equally as productive." They did not, however, suffer 
this session to pass by, without a prelude to their final purposes. 
An act was now passed, continuing the duties on certain im- 
ports into the colonies; from the harshness of whose protecting 
penalties, and the arbitrary prosecutions sanctioned for their re- 
covery, the system of restrictions upon the commerce of the co- 
lonies derived new features of oppression. (6) At the same pe- 
riod, they transmitted instructions to the colonial ofiicers, direct- 
ing the most rigorous enforcement of the trade laws, to the en- 
tire destruction of a lucrative commerce between the English 
and the French and Spanish colonics, which had grown up by 
connivance. The colonists had hitherto drawn a discrimination, 
between the right to regulate their commerce, which they had 
conceded to parliament, and the right of mere internal taxation, 
which they denied ; but the course of the English ministry at 
this period, in imparting to the restrictive system every charac- 
teristic of tyranny, was well calculated to destroy the distinction, 
and to induce the people to retract even their concession of the 
legality of the former. 

In reviewing the conduct of that ministry, we arc almost inclined 
to believe that they acted upon the maxim " that the accumulation 
Tnfiaenco of of - oppression diminishes both the will and the 
upon STeoE P ower t0 resist." Such might have been its effect, 
n,e8, upon a people already prepared for their chains. 

whose craven spirit was willing to avert present suffering, by the 
surrender of their liberties. It was aimed at a people of a very 
different cast ; and it fell upon them only to rouse all their ener- 
gies against the oppressor. It left them no middle course, be- 
tween unqualified submission, and firm and sturdy opposition. 

The ban intimation, that the designs already accomplished were 
to be followed up bj B stamp tax, uproused the people of every 

(C) Sec the preamble of tl»i-» act in 1st Pitkin's U. States, 1C3. It rests 
the enactments upon til m "thai it was just and necessary, that 

a revenue kmi rica for defraying the expenses of defending, pro- 

tecting, and i< .'' 



332 HISTORY FROM THE PASSAGE TO [Htet. Vfcw. 

colony. Assemblies remonstrated, public meetings denounced, 
and agents petitioned; but still to no purpose. The measure 
was resolved upon ; and on the 22d March, 1765, the stamp tax 
was finally imposed. The interval between the annunciation of 
the intention to impose it, and its final imposition, had produced 
an effect very different from that intended or expected by the 
ministry. Instead of eliciting substitutes, or propositions for a 
compromise, or wearing away the force of the first burst of in- 
dignation, it had only given the people of the colonies time to 
roily for the opposition, and to concert means for the defence. 
The subject had been fully discussed amongst them in all its va- 
rious bearings. The resolutions and treatises, which exhibited 
these, had been borne to every corner of the colonies. The 
knowledge of his right, and of the free principles by which they 
were sustained, was brought home to every man's understanding. 
The passive were roused ; the timid were encouraged ; and the 
bold and adventurous caught fresh hopes and ardor from the 
unanimity around them. The opposition to the mere proposi- 
tion of the tax, led naturally to the consideration of the means 
by which it was to be frustrated, in the event of its actual im- 
position. Hence, when the act came, it found them with their 
lamps trimmed, and ready to go forth to meet it. 

In investigating the history of this act, much talent has been 

employed, and much time and research have been expended, in 

determining to which of the colonies belongs the high honor of 

having given the first impulse to colonial resistance. 

Relative merits 

of the colonies If such honor attaches peculiarly to any one of the 

in originating 

the resistance to colonics, the effort to establish its claims is worthy 

the stamp act. 

of all research. To have been the advance guard of 
liberty, in the first great effort which opened the way to the 
establishment of the first republic upon earth, is enough for 
immortality ; and generous rivalry will accord it, where it is due. 
Yet it may well be questioned, whether such merit can be pro- 
perly ascribed to any man or any colony. Such pretensions 
must assume, as the foundation of the claim, the origination 
either of the principles of opposition, or of the determination to 
resist, or of the means of resistance. If the early movements 
in some of the colonies, in opposition to this act, were but the 
outbreaking? of a common feeling and a common sentiment, 



Chap. V] THE REPEAL OP THE STAMP Al 333 

pervading the whole, and waitin 5 every where but for opportu- 
nities of manifesting themselves; instead of being impulses to 
public sentiment, they were but the results of it. If these move- 
ments were early, merely because accidental circumstances gave 
to the colony, in which they were made, the first opportunity of 
renting thai common feeling, (hey were but the first conductors 
of already concentrated public indignation. Such was the case 
iu these colonies. The puncthred veins only gave out the blood 
that pervaded the whole system. The tyrant, who wishes to 
strike the blow in security, should not apprise the victim of its 
coming; unless he intends it for the passive slave. When the 
act is resolved upon, to alarm is folly. Yet such was the imbe- 
cile policy of the English ministry, and the colonies improved 
well the interval between the annunciation and the blow. Speech- 
es, resolves, addresses, essays, had brought the public mind to 
contemplate all the consequences of the proposed measure; and 
the spirit of resistance was already up, in the formidable shape 
of combinations. However suppressed that spirit might seem, 
and ready to submit, when there remained no alternative but 
open rebellion against the act, the "muster sjiiriis" in the colo- 
nies knew full well, that its rest was but the couching of the lion, 
and it- silence the portentous silence that precedes the storm. 
Such were Henry of Virginia, and Otis of Massachusetts, in the 
two great colonics; whose movements against the stamp act, 
stand first in order and importance upon the page of history. 
They touched the chord of public feeling, already tremblingly 
alive; and they knew its response. Their colonies went in ad- 
vance of the others, in the expression of these sentiments, 
through their Assemblies; but by the early convention of the lat- 
alter th< of the act, accident cast upon them the 

lir-t opportunity of taking the lead in opposition to it. They 

aided the firs! notes of defiance; but these wore soon echoed 
back by colonies, as ready, energetic, and determined in resis- 
tance, a- they. 

1 1 i- not our purpose, nor our widi, to say aught in derogation 
of the high claims of those patriotic colonies, to be cherished in 

our remembrance as the foremost champions of colonial liberty, 
iho eoorw of Thoir honoi 1- reflected upon us; and the virtues, 

inJ ' and noble bearing of their di tinguished ions, adorn 



331 HISTORY FROM THE PASSAGE TO [Hist. View. 

our common liistory. To have been found firm and faithful by 
their side "is enough for honor." Yet in the histories of the 
colonial transactions connected with the stamp act, the course of 
Maryland seems to have been but little known or understood ; and 
she has been thrown into the rear of the other colonies, as if she 
had been, by them, stimulated to, and led on, in opposition. Yet 
her transactions prove, that she wanted no teacher, either to 
instruct in her rights, or to prompt them to preserve them ; and 
they exhibit a character and unanimity of opposition, that is with- 
out a parallel in the history of any colony. 

Circumstances of the moment, over which she had no control, 
prevented this colony from expressing, through her Assembly, 
her opposition to this measure, not only before the act passed, 
Causes which Dut a ' s0 f° r a ^ on S period after its passage. The pow- 
eariy e "acfion 'of er to convene the Assembly resided wholly with the 
her Assembly, governor ; and upon the prorogation of it, in Novem- 
ber, 1763, its session was postponed, by repeated prorogations, 
until September, 1765. The Assembly was thus disabled from de- 
claring its decided hostility to the measure, at an earlier period ; 
but its eagerness in the common cause, is displayed not only by 
the spirited and unanimous declaration then made, but still more 
forcibly, by its remonstrance to the governor, for his delay in con- 
vening it at a period, when its members were desirous to unite 
with their brethren in the other colonies, in the protection of 
their common liberties. Their message is the best commentary 
upon the subject. " We are truly concerned (say they in this 
message, 13th December, 1765,) that the duty we owe to our 
constituents, lays us under the indispensable necessity of observ- 
ing, that every power lodged in the hands of government is there 
entrusted by the constitution, to be exercised for the common 
good. To this end hath your excellency, as supremejmagistrate, 
the power of convening and proroguing ; which, we need not 
remark, according to the bill of rights, confirmed at the happy 
revolution, ought, for redress of all grievances, and for amend- 
ing, strengthening, and preserving of laws, to be held frequently. 
The unhappy prevalence of the small pox, from the month of 
March to that of September last, rendered a convention of 
Assembly within that time impracticable ; but we are ignorant of 
any reasons, that could occasion the long intervention from No- 



Ciiap. V.] THE REPEAL Ul THE STAMP ACT. 335 

vcmbcr, 17133, to last March ; within which time, circumstances of 
a peculiar nature, required a meeting of Assembly, which was 
prevented by prorogation. It is incumbent on us, as the repre- 
sentatives of a free people, to remonstrate against that measure; 
especially, as it prevailed at a time, so very critical to the rights of 
America; at a time, when the good people of this province 
ardently wished for an opportunity to express, by their represen- 
tatives in Assembly, their sense of a scheme, then entertained by 
the British House of Commons, of imposing stamp duties on the 
colonies; and for want of which, their involuntary silence, on a 
subject so interesting and important, has been construed by a 
late political writer of Great Britain, as an acquiescence in that 
intended project." " We cannot help expressing our apprehen- 
sion, (they remark in conclusion) that if we should be now silent, 
at some future time, when it may be the unhappiness of this 
province to be under the government of a gentleman less favora- 
ble in his inclinations to the interest of America than yourself, the 
occasion, which has laid us under the disagreeable necessity of 
troubling your excellency with this assertion of our rights, might 
be made use of, as a precedent for promoting measures prejudi- 
cial to the rights and privileges of the good people of this pro- 
vince." (7) Previously to this, and at the first moment of their 
assemblage in September, 1765, they had passed resolves against 
the stamp act, and had deputed commissioners to the general 
Congress ; and this remonstrance is here adverted to, only for 
the purpose of attesting, that the same spirit, which characteri- 
sed their first Assembly proceedings after the passage of the 
stamp act, had prevailed in the colony, from the first moment the 
tax was proposed. 

There were, however, other indications of public feeling, which 
went in advance of all the Assembly transactions, to demon- 
Mynd 'i"i- ~" 11 ' ''" general detestation of the measure by 
,;- the people of Maryland. They had amongst them 
or her in.'. |ii.'. ,| ial admirable reflector of public sentiment, an 
established ami well regulated press, in the paper then conduct- 

(7) This remonstrance was submitted li> Thomas RiBggold, Esq., a dele 
gate from Kent county ; who was also one of the commissioners hum i 
colony to the Stamp Act Cui. 



336 I11STOKV FUOM Tllli 1'ASSAGE TO tlllst. View. 

cd by Mr. Jonas Green, of Annapolis, under the name of " The 
Maryland Gazelle." It was established in the year 1745, and 
has ever since been conducted by his descendants, under that 
name. Venerable for its antiquity, in which, it is believed, it 
outranks every existing paper in these United States, it is render- 
ed still more so by its devotion to the cause of liberty, from the 
very origin of our struggle for emancipation. Yet flourishing in 
the hands of his descendant, and sustained by his worth, it has 
been, truly, "an evergreen." The influence of the press, even 
at this day, is known and felt by all, notwithstanding the many 
causes which have conspired to diminish it ; and it may still, in 
s ome degree, be relied upon, for its indications of the prevailing 
temper and sentiments. There were, however, many circum- 
stances, peculiar to that day and the establishment of that paper, 
which would induce us to look to it, and to rely upon it, for the 
faithful delineation of the public feeling. It was the only paper 
of the province ; it was the government paper ; it had uniformly 
been conducted with a firmness and moderation, as far removed 
from the intemperance of passion, as the servility of submission ; 
and its columns were open to free and temperate discussion on 
all sides. Yet, whilst we find, at every step, continued evi- 
dences of the universal opposition to the stamp tax ; we look in 
vain to it, as the only record of the times, for the slightest indi- 
cations of faltering on the part of any of the people of Mary- 
land. The course of the paper itself was one of determined 
opposition. The intimation of the ministry's intention to tax 
the colonies, was first communicated in its number of 17th May, 
J764; and from that period, the tenor of its publications con- 
tinually indicated its hostility to the measure. Its number of 
the 18th of April, 17G5, announced the intention to suspend its 
publication, if the melancholy and alarming accounts, which had 
just been received, of the probable passage of the stamp act, 
should prove true. (8) Its actual passage was communicated in 

(8) Some of the short and pithy remarks of this paper, and its mottoes and 
devices, in reference to the stamp act, are quite amusing, and carried with 
them more power to arrest general attention, than whole columns of argu- 
mentation. It thus conveys the certain intelligence of its final passage . 
" Friday evening last, between 9 and 10 o'clock, we had a very smart thun- 
der gust, which struck a house jn one part of the town, and a treo in another. 



Ohap. V.] Till: REPEAL OF THE STAMP ACT. 337 

terms of the highest iiniiL r nation ; and from that period, the co- 
lumns of this paper were continually crowded with puhlications, 
illustrative of the rights of the colonics, and of the necessity of 
-lance. The operation of the act having commenced, the 
panel df the 10th October, l?bo, was put into mourning, with 
the expressive motto: " The Maryland Gazette expiring in hopea 
of a resurrection;" and its publication wag, shortly afterwards 1 , 
actually suspended until the 10th of December following, when 
n was revived with the avowal "that it should be, as it had been, 
sacred to liberty, and consequently to virtue, religion, and the 
o-ood and welfare of its country." These details, connected as 
they are with the history of the times, cannot be uninteresting; 
and they are due to one, whose efforts and influence, as an 
auxiliary in the cause of liberty, were widely felt and highly esti- 
mated. (9) His paper was a " vara avis" in that day — a govern 
m< nt paper warring on the side of the people. 

The English ministry displayed some policy in the selection 
of residents of the colonies, as officers to carry the stamp act 

into effect; but their selection proved, in the sequel, 
Hood, Btamp- 
detrihutoc roc to be a decree of expatriation to those who accept- 

Maryland. . r 

ed the appointment. It was peculiarly so, to the 
person appointed as stamp-distributor for Maryland. Zacha- 
riah Hood, the person alluded to, was a native of Maryland, and, 
at one period, a resident merchant of Annapolis. More of his 
history we know not ; and if the limit of the maxim be just, " nil 
de mortuis m-i bouum," we should wish to know no more. His 
whole history may be summed up in one sentence: "He was a 
willing instrument in the hands of a tyrannical ministry, for the op- 

in another. But \vc were more thundi rslruck last Monday, on the arri- 

\>l ofCapl tin J hardson, in the Bhip Pitt, in six weeks from the 

tain account of the stamp act being absolutely passed." 

ications, advocating the cause of the colonies, were transmitted to 

from Virginia- In one of these, the correspondent remarks : 

" It being well known, thai we are, in this colony, deprived of that great sup- 

porl • ' the liberty of the press; as the only one wc have here, is 

totally irpox of ministerial craft, I must therefore 

applj ,|.[i. ired to be a bold and honest assertor of 

to give n .i placi in vournexl paper, &.e." Green's 

I ; 



3-38 HISTORY FROM THE PASSAGE TO [Hist. View, 

pression of the people amongst whom he was born and had lived." 
His appointment was announced in a letter from London to a gen- 
tleman of Annapolis, published about the period of his arrival. 
" Among the many other promotions of officers in the colonies, (it 

remarks,) we are credibly informed that Z h H d, late a 

sojourning merchant of the city of Annapolis, but at present Z h 

H d, Esq. at St. James', has, for his many eminent services to 

his king and country during the late war, got the commission of 
Distributor of the Stamps in that province. This gentleman's 
conduct is highly approved of here, by all court-cringing politi- 
cians; since he is supposed to have wisely considered, that if his 
country must be stamped, the blow would be easier borne from a 
native, than a foreigner, who might not be acquainted with their 
manners and institutions." (10) 

Coming under such auspices, and with such purposes, his ar- 
rival at Annapolis was welcomed with those marks of distinction, 
ins reception in which it was so customary to confer upon the stamp 
tbe colony. distributors of that day : but, fortunately for him, 
they were bestowed upon his effigy. (11) The news of his ar- 
rival soon spread through the province; and his patriotism was 
honored in the same significant manner, at Baltimore, Elk Ridge, 
Fredericktown, and other places. (12) The character of these 
proceedings must not be misunderstood. They were not the 

( 10)' Published in Green's Gazette of 22d August, 1765. 

(11) The following is the account of his reception, published in Green's 
Gazette of August 29th, 1765. 

"Monday morning last, a considerable number of people, assertors oj 
British American privileges, met here to show their detestation of, and abhor- 
rence to, some late tremendous attacks on liberty : and their dislike to a cer- 
tain late arrived officer, a native of this province. They curiously dressed up 
the figure of a man, which they placed on a one horse cart, malefactor-like, 
with some sheets of his paper in his hands before his face. In this manner, 
they paraded through the streets of town till noon, the bells at the same time 
tolling a solemn knell, when they proceeded to the Hill ; and after giving it 
tlie Mosaic law at the whipping post, placed it in the pillory, from whence 
they took it, and hung it to a gibbet erected for that purpose, and then set fire 
to a tar barrel underneath, till it fell into the barrel. By the many significant 
nods of tli'' head, while in the cart, it may be said to have gone off very 
pi nitently." 

! ') Green's Gazette of September, 1765. 



Chap. Y.l THE REPEAL UK THE STAMP ACT. 3*i*J 

heedless and ungovernable movements of tumultuous spirits, nor 
the wanton outrages of men without character. They sprang 
from the just and settled indignation of a whole people. They 
were conducted with calmness and publicity, and were promoted 
by men of the highest talents and character. They were not 
mere personal indignities offered to the unworthy instrument of 
the crown; but acts of deliberate and open defiance, intended , 
to manifest, in a manner not to be misunderstood, their deter- 
mined opposition to the stamp act, and their utter abhorrence of 
all who lent themselves to its enforcement. Amongst those who 
were prominent in the proceedings at Annapolis, was the dis- 
tinguished Samuel Chase, whose energies quickened all that he 
touched, and whose abilities illustrated all that he examined. 
Just arrived to manhood, he already gave promise of that happy 
combination of talents, for which he was afterwards eminent be- 
yond the reach of rivalry; when all eyes were turned upon him, 
to acknowledge the profound lawyer, the eloquent advocate, the 
resistless orator of the people, and the unrivalled leader of de- 
liberative assemblies. Honored by his fellow citizens, even at 
this early period, with a seat in the legislature, he was already con- 
spicuous, at the age of twenty-four, as the champion of colonial 
liberties. He, himself, has characterised these proceedings in the 
following energetic language, which is extracted from an indig- 
nant reply to an attack made upon him by the municipal au- 
thorities of Annapolis, in a publication, after the repeal of the 
stamp act, relative to the city affairs, in which he was described 
"as a busy, restless incendiary, a ringleader of mobs, a foul- 
mouthed and inflaming Bon of discord and faction, and a pro- 
moter of the lawless excesses <>f the multitude." " W;is it a 
mob (he replies,) who destroyed, in effigy, our Stamp Distribu- 
tor? Was it a mob who assembled here from the different coun- 
ties, and indignantly opened the public offices? Whateve*Tttnity 
may whisper in your ears, or that pride and arrogance may 
sugge>t, which are natural to despicable tools of power, emerged 
from obscurity and basking in proprietary sunshine ; you miisl 
confess them to be your superiors, men of reputation and merit, 
who are mentioned w ith respect, while you are named u ith con- 
tempt, pointed out and hissed at, ns 'fruges consumere nati.' f 
:i'-)niit that I was one of those who committed to the llame" in 



340 HISTORY FROM THE PASSAGE TO [Hiit, \ ii H 

effigy, the Stamp Distributor of this province, and who openh 
disputed the parliamentary right to tax the colonies; while yon 
skulked in your houses, some of you asserting the parliamentary 
right, and esteeming the stamp act a beneficial law. Others of 
you meanly grumbled in your corners, not daring to speak out 
your sentiments." (13) 

An incident occurred soon after Hood's arrival, which ren- 
dered him still more obnoxious to the people of the province. 
Finding himself the object of general detestation, 

His expulsion ..... , . . 

and ultimate he endeavored to palliate his conduct by the asser. 

late. 

tion, that the office which he held, had been solicit- 
ed by a member of the Assembly, who had offered a large sum 

(13) The whole of this reply, written in July, 17G6, and appended to 
Green's Gazette of June 25th, 17G7, is written in the same bold and vigor- 
ous style. Although abounding in personal reflections, and savouring too 
much of coarse invective, it is strikingly characteristic of that undaunted 
spirit, and fierce independence, which prominently marked, throughout life, 
the character of Mr. Chase. These traits of character, sometimes imparted 
to his conduct a harsh and arbitrary aspect, which provoked enmity, by seem- 
ing to disregard it : but in the estimation of those whom he honored with his 
friendship, they were redeemed by the noble and generous qualities of the 
heart which lay beneath. Those whose delight it is to spy into character, 
as some modern philosophers examine the sun, only for the purpose of finding 
spots in it, may dwell with pleasure upon this imperfection, for such it was: 
but more generous minds will not look "as if darkly through a glass," at the 
character of such a man as Samuel Chase, for the purpose of excluding the 
brilliant qualities, which threw into the shade all his foibles. The puny 
critic may do this, whose feeble vision is unable to withstand the dazzle of 
such qualities. Yet, if to anatomize human character for the discovery of its 
faults, be the first requisite to its proper estimate — and he, who attempts it, 
has even the moral sanction, in his own exemption from frailties — for the 
proper conception of such a character as that of Mr. Chase, he must carry 
himself beyond the silken age in which we live, to the ag< that made men, 
and tried men's souls. Mr. Chase sprang into active life at the very period 
when the American colonies, planted by freemen, having grown up to matu- 
rity in the enjoyment of liberty ; and, having worked out their own 
ance by the energies of a spirit that shrank from no danger or privation — 
were, for the first time, to be taught unqualified submission to the 
sible power of parliament. Around him were the minions of that p' 
who were willing to sell their birth-right for the pottage that rew 
surrender,— rready to be slaves, for the sake of being overseers. Tin 
of independence naturally grows harsh at such a spectacle ; and 



,,„,,. v.| THE TIEFF-.U. OF TIIF STAMP id 341 

^rttetestowmenl of it: and thai, therefore the people oogtii 
11(lt to spend their whole rary upon him for his oce oi it; 

The person pointed a1 bv this slanderous assertion, was 'I nomas 
Ringgold, then a delegate from Kent county, and afterwards eon- 

9 pi CU OUS in «!..■ transactions of Maryland, as of her commu - 

ikmento the Stamp Act Congress, and the author ol the remon- 
9tr ance to the governor already alluded to. This rumour,-, set on 
fool by Hood, drew from Mr. Ringgold the following noble and 
indignant reply, which spoke the general sentiment of thei pro- 
vince "I hope (says he,) that ray conduct has been such, both 
in public and private stations, as to induce a general belief, thai 
1 h;iV e the feelings pf humanity, an, a friend to liberty, and love 
my country. I should be extremely sorry, by an act so.truly 

mere courtesies of life, when they have become the robe that cloaks the ser- 
, He BOUl The predominance of seeming sanctity, has driven virtuous hearts 
from the loathing of hypocrisy, even to the rejection of the decent observan- 
ces of religion-the licentiousness of an age, has made virtue shrink from 
oper familiarities and endearments of life, and purity become austerity. 
The reign of Charles I. made fanatics ; fanaticism made hypoensj : and the 
wild fanaticism, and hypoerisj in the garb of austerity, which preceded it, 
produced the licentious age of the second Charles. The age in which l 
itrugg le ,,l our colonies for independence, was well calculated t 
free spirit the " fortlltr in modo," os \t has been called : and the long 
u,uance of it, in the midst of disaffection and treachery, to form a char- 
acter determined and unbending, even to stemness-The men of the revolu- 
tion were not formed in sunshine, nor made " to court an amorous looking 

glass 

Thrown thus into the midst of an age calculated to uprouse, even in ve- 
hemence and harshness, the bold and indignant spirit of a freeman, Mr. 
rh.se was assailed, intheverj outset of his career, by the courtly adherents 
of the royal cause, with whom his boldness was faction, and his vehen 

In his encounters with su disdained all reserve, 

5a T e no quarter. "S ?," he learned to despise: and I 

a ma,,, who could say with Hamlet, raor< justlj than Mr. I ha ' 

■ What he felt, he expressed: and.whal he expn 
stamped with -.11 the is mind, and thi uncompromising i nergj ol 

his character i ' llls ' , ' ,| 

for my feeble i :■ bis virtues and abil . re i 

the nation's bistorj and there isno tru< Vmerican, to whom his nam< 

, the imperishable roll of American Independenci 
W i. f u i recoUection of his lervici He wa i on ol M iryland . 

and when will hi h ive hU ] 



342 HISTORY PROM THE PASSAGE TO [Hist. View. 

contemptible, to have afforded room for a contrary opinion. I 
therefore beg the liberty publicly to declare, through your paper, 
that no consideration should have induced me to have had any 
hand in the execution of a law, tending to the subversion of our 
dearest rights as freeborn subjects of England, and to the sup- 
pression of the freedom of the press." (14) There is a moral 
force in public sentiment, before which the instruments of ty- 
ranny cower. Hood wanted the firmness, even to attempt the 
execution of the office which he had solicited ; and the public 
indignation, which had been lavished upon his effigy, at length 
taking a direction towards his person, he secretly absconded 
from the province early in September, 1765, and never paused in 
his flight, until he had reached New York, and had taken refuge 
under the cannon of Fort St. George. (15) He was the first and 
last stamp-distributor of Maryland. 

The Assembly was at length convened on the 23d September, 

1765 ; and the Stamp Act was the first subject which engaged its 

attention. Its members required no time for dis- 

First Assembly . , .. , . 

after the stamp cussion or deliberation, as to the course they should 
pursue. The fiat of public sentiment had already 

(14) This publication of Mr. Ringgold's, is dated 27th August, 1765, and 
appeared in Green's Gazette of 5th September, 1765. 

(15) Hood's flight was insufficient to save him from the common fate of 
the stamp-distributors, a resignation by compulsion. He only escaped from 
the resentment of one colony, to be arrested by the sisterly indignation of ano- 
ther. Having taken up his residence on Long Island, he soon attracted the 
attention of the people, and the liberals at once determined, (to use their own 
language,) that as he had by flight deprived the people of Maryland of that 
justice which they had a right to demand, the resignation of an office calcu- 
lated to enslave them ; they would take the affair into their own hands, and 
either compel him to resign, or send him back to Maryland as a fugitive 
from justice. 

A party of volunteers accordingly assembled on the 28th of November, 
1765, and surrounded the house on Long Island, in which he was concealed. 
Escape was impossible : and poor Hood was hooded. He now threw himself 
upon their sympathies, and represented himself as one rather to be pitied than 
to be punished. His appeals to mercy were all unavailing : and his next at- 
tempt was at a compromise. He now desired, that his word of honor might 
be received in lieu of his oath ; and that the right might be reserved to him to 
hold his office, if hereafter his countrymen should desire it. He was answer- 
ed, that the people of Maryland having an absolute right to freedom, he must 
absolutely and unconditionally renounce an office, which gave him power to 



Chap. V.J THE REPEAL OF THE STAMP ACT. 313 

gone forth in determined hostility to the act; and it only remain- 
ed for the Assembly to register its decree. In some instances, to 
prevent all possible misapprehension, the members were specially 
instructed by their constituents. Those given at that period by 
the people of Anne Arundel county to their representatives, 
Messrs. Worthington, Hammond, Hall, and Johnson, have been 
preserved, and are distinguished by their manly sentiments and 
vigorous style. After a full examination of their claims to ex- 
emption from taxation not sanctioned by their assent, founded 
both upon the express language of the charter of Maryland, and 
their liberties as English subjects, they present its result in the 
following forcible language: "Hence the foundation of our 
claim, to be affected by no law, nor burdened with any kind of 
tax, but what is laid upon us by the assent of our representatives 
in Assembly convened, agreeably with the fundamental laws of 
the constitution of our mother country ; our rights and privileges 
as Englishmen, declared and confirmed by our charter; and the 
uninterrupted usage and practice of our province, from its first 
settlement to the present time. And we do unanimously protest 
against our being charged in any other manner, and by any other 
powers whatsoever ; and we do request of you, our representa- 
tives, that this our protest may be entered, and stand recorded, in 
your journal, amongst the proceedings of your house, if it may 
be regularly done." (16) 

The circular from the Assembly of Massachusetts, inviting the 
other colonies to unite with them in the appointment of com- 

nislave them ; and that if this were not done, he should be delivered into the 
hands of an exasperated multitude, and carried back to Maryland, with labels 
upon him, signifying his office and designs. Resistance was hopeless, and 
Hood yielded. As soon as his abjuration was signed, he was accompanied by 
upwards of one hundred gentlemen, from Flushing to Jamaica, where it was 
regularly sworn to, and he was discharged. Like the similar abjurations of 
ih.it day, it left DO room for r<\u\ vocation or mental rawrvatiOD, and abounded 
with apologies atwl BXCUM I, utterly at variance with the known feelings of the 
individual, and only serving to render him contemptible and harmless. 

(]f>) Tbeae imtraetiom were given on the 7th of September, 176.">, and 
• tr« published at largo in firccn's (Jazcttc of 24th October, 1765. 



,'Hi HISTORY FROM THE PASSAGE TO [Hist. View 

missioners to a general congress, to be held at 
its proceedings New York, was immediate] v taken up for consi- 

upon the propo- •> l 

Bitipn tor a gene deration, by this Assembly; and, passing by all 

ral congress. ' J •> ' > r o J 

other business, on the second day of their session, 
they concurred in the proposition, and appointed commissioners, 
and a committee to draft their instructions. These commis- 
sioners were Col. Edward Tilghman, of Queen Anne's, William 
Murdock, of Prince George's, and Thomas Ringgold, of Kent. 
They were appointed solely by the lower house, but the measure 
was approved and sanctioned both by the upper house and the go- 
vernor, who concurred in the passage of an ordinance intended 
to meet the expenses of the embassy. The instructions given to 
these commissioners, directed them to repair to the congress, 
" there to join in a general and united, dutiful, loyal, and humble 
representation to his Majesty and the British parliament, of the 
circumstances and condition of the British colonies; and to pray 
relief from the burdens and restraints lately laid upon their trade 
and commerce, and especially from the taxes imposed by the 
stamp 1 act, whereby they are deprived, in some instances, of that 
invaluable privilege of Englishmen and British subjects, trials by 
juries ; and to take care that such representation should humbly 
and decently, but expressly, contain an assertion of the right of 
the colonists, to be exempt from all and (very taxations and im- 
positions upon their persons and properly, to which they do not 
consent in a legislative way, either by " themselves, or their 
representatives freely chosen and appointed." (17) 

Having thus speedily and efficiently concurred in the proposi- 
tion for a general congress, it now remained for them to declare, 

in a more formal and explicit manner, the character 
its resolves 

against the and tendencies of the late measures of the English 
stamp act. . 

parliament. Addresses and resolves were the order 

of the day ; but in Maryland, some solemn and explicit declara- 
tion of their feelings was rendered peculiarly necessary, by the 
attempts to misrepresent them in England. The resolves, now 

(\7) The members of the committee, by which these instructions were 
drafted, were, James Hollyday, of Queen Anne's, Thomas Johnson, of Anne 
Arundel, Edmund Key, of St. Mary's, John Goldsborough, of Talbot, John 
Hammond, nf Anne Arundel, Daniel Wolstenholme, of St. Mary's, and John 
Hanson, Jr., of Charles. 



Chap. V.J THE REPEAL OF THE STAMP ACT. 345 

unanimously adopted, were sufficient to dispel all doubts in the 
minds of the ministry, if any such existed, as to the cordial 
concurrence of Maryland with the refractory colonies. They 
were reported by a committee, consisting of Messrs. William 
Murdoch of Prince George's, Edward Tilghman of Queen 
Anne's, Thomas Ringgold of Kent, Samuel Chase of Annapolis, 
Samuel Wilson of Somerset, D. Wolstenholme of St. Mary's, 
John Goldsborough of Talbot, John Hammond of Anne Arun- 
del, Henry Holyday of Talbot, Charles Grahame of Calvert, 
Edmund Key of St. Mary's, and Brice T. B. Worthington of 
Anne Arundel, and were unanimously adopted and ordered to 
be published on the 2Sth of September, 1765. Pre-eminent 
amongst all the legislative declarations of the colonies, for the 
lofty and dignified tone of their remonstrances, and for the 
entire unanimity with which they were adopted, they form one 
of the proudest portions of our history. 

I. Resolved, unanimously, That the first adventurers and settlers 
of this province of Maryland brought with them and transmitted 
to their posterity, and all other his Majesty's subjects, since in- 
habiting in this province, all the liberties, privileges, franchises, 
and immunities, that at any time have been held, enjoyed, and 
possessed, by the people of Great Britain. 

II. Resolved, unanimously, That it was granted by magna char- 
ta, and other the good laws and statutes of England, and con- 
firmed by the petition and bill of rights, that the subject should 
not be compelled to contribute to any tax, talliage, aid, or other 
like charges not set by common consent of parliament. 

III. Resolved, unanimously, That by a royal charter, granted 
by his Majesty, king Charles I. the eighth year of his reign 
and in the year of our Lord one thousand six hundred and thirty- 
two, to Cccilius, then Lord Baltimore, it was, for the encourage- 
ment of people to transport themselves and families into this pro- 
vince, amongst other things, covenanted and granted by his said 
Majesty for himself, his heirs, and successors, as followeth : 

" And we will also, and of our more special grace, for us, our 
heirs and successors, we do strictly enjoin, constitute, ordain, and 
command, that the province shall be of our allegiance, and that 
all and singular the subjects and liege people of us, our heirs, 
Uld successors transported into the said province, and t lie chil« 

11 



346 HISTORY FROM THE PASSAGE TO [Hist. View 

drcn of them, and of such as shall descend from them, there al- 
ready born, or hereafter to be born, be, and shall be denizens and 
lieges of us, our heirs, and successors, of our kingdom of Eng- 
land and Ireland, and be in all things held, treated, reputed and 
esteemed, as the liege faithful people of us, our heirs, and suc- 
cessors, born within our kingdom of England, and likewise any 
lands, tenements, revenues, services, and other hereditaments 
whatsoever, within our kingdom of England, and other our do- 
minions, may inherit, or otherwise purchase, receive, take, have, 
hold, buy and possess, and them may occupy and enjoy, give, 
sell, alien, and bequeath, as likewise, all liberties, franchises and 
privileges, of this our kingdom of England, freely, quietly, and 
peaceably, have and possess, occupy and enjoy, as our liege 
people, born, or to be born, within our said kingdom of England, 
without the let, molestation, vexation, trouble, or grievance, o^ 
us, our heirs and successors, any statute, acts, ordinance, or 
provision, to the contrary thereof, notwithstanding. 

"And further, our pleasure is, and by these presents, for us, 
our heirs and successors, we do covenant and grant, to and with 
the said now Lord Baltimore, his heirs and assigns, that we, our 
heirs and successors, shall at no time hereafter, set or make, or 
cause to be set, any imposition, custom, or other taxation, rate 
or contribution whatsoever, in or upon the dwellers and inhabi- 
tants of the aforesaid province, for their lands, tenements, goods 
or chattels, within the said province, or in or upon any goods or 
merchandizes within the said province, or to be laden and un- 
laden within any of the ports or harbours of the said province : 
And our pleasure is, and for us, our heirs and successors, we 
charge and command, that this our declaration shall be hence- 
forward, from time to time, received and allowed in all our courts, 
and before all the judges of us, our heirs and successors, for a 
sufficient and lawful discharge, payment and acquittance : com- 
manding all and singular our officers and ministers of us, our 
heirs and successors, and enjoining them upon pain of our high 
displeasure, that they do not presume, at any time, to attempt 
any thing to the contrary of the premises, or that they do in any 
sort withstand the same ; but that they be at all times aiding and 
assisting, as it is fitting, unto the said now Lord Baltimore, 
and his heirs, and to the inhabitants and merchants of Maryland 



Chap. V.] THE REPEAL OF THE STAMP ACT. 347 

aforesaid, their servants, ministers, factors, and assigns, in the full 
use and fruition of the benefit of this our charter." 

IV. Resolved, That it is the unanimous opinion of this house, 
that the said charter is declaratory of the constitutional rights 
and privileges of the freemen of this province. 

V. Resolved, unanimously, That trials by juries are the grand 
bulwark of liberty, the undoubted birth-right of every English- 
man, and consequently of every British subject in America; and 
that the erecting other jurisdictions for the trial of matters of 
fact, is unconstitutional, and renders the subject insecure in his 
liberty and property. 

VI. Resolved, That it is the unanimous opinion of this house, 
that it cannot, with any truth or propriety, be said, that the free- 
men of this province of Maryland, are represented in the British 
parliament. 

VII. Resolved, unanimously, That his Majesty's liege people of 
this ancient province, have always enjoyed the right of being go- 
verned by laws, to which they themselves have consented, in the 
articles of taxes and internal polity ; and that the same hath 
never been forfeited, or any other way yielded up, but hath been 
constantly recognized by the king and people of Great Britain. 

VIII. Resolved, That it is the unanimous opinion of this 
house, that the representatives of the freemen of this province, 
in their legislative capacity, together with the other part of the 
legislature, have the sole right to lay taxes and impositions on 
the inhabitants of this province, or their property and effects ; 
and that the laying, imposing, levying, or collecting, any tax on 
or from the inhabitants of Maryland, under colour of any other 
authority, is unconstitutional, and a direct violation of the rights 
of the freemen of this province. 

Declining to enter upon the consideration of any other busi- 
ness, the lower house now desired the governor to grant them a 
ni*po*ition of recess of B few weeks, most probably for the pur- 
ibeSumpFipet. p 0se) although not expressly avowed, of awaiting 
the issue of the proceedings of the Continental Congress. Tin -ir 
request WU gratified, arid the Assembly prorogued until the first 

of Nov< mber. Before the prorogation, the governor sought the 
n<h ice of the lower house as to the secure disposition of the 

•tamp paper, the arrival of which was now momently expected. 



348 HISTORY FROM THE PASSAGE TO [Hist. View 

This, however, they declined to give, as relating to a subject 
upon which they had not consulted their constituents; and the 
governor, in this emergency, found it necessary to throw himself, 
for direction, upon his constitutional advisers, the members of 
the upper house, who had no such scruples, and were always 
more prone to the side of prerogative. They assured him that 
there was no place of security, to protect it from the attempts to 
destroy it, which would inevitably be made; and they therefore 
advised its deposit on board one of his majesty's ships on the 
Virginia station, until further orders from the ministry. 

On reviewing these proceedings of the first Assembly of Ma- 
ryland after the passage of the stamp act, it is apparent, that 
humble as her pretensions have been, and lightly 

Character of the r . & J 

Proceeding of as they have been considered, they may be proudly 

this Assembly. J J l J 

contrasted with those of any other colony. They 
exhibit an unanimity in opposition to the act, amongst all classes 
of people and all branches of her government, which is without 
a parallel. Firm yet temperate, her public remonstrances breathe 
the genuine spirit of determined freedom, unalloyed by the lan- 
guage of passion or the temper of anarchy. It must, however, 
be admitted, that, perhaps, some of this unanimity was attributa- 
ble to the character of her government. The interests of the 
proprietary were as adverse to the right of internal taxation then 
claimed for parliament, as were those of the people at large ; and 
although his government did not deem it prudent to put itself in 
direct opposition to the crown, it naturally felt but little interest 
in the success of a claim, which, whilst it oppressed the people 
arid exhausted their resources, at the same time impaired the 
power and influence of the proprietary. 

The contributions of Maryland to the common cause, did not 
consist merely in the concurrence of her people and her Assem- 
PoiiticM Essays DMes w * tn tnose °f ^ 10 other colonics, in the adop- 
of that period. tion f mcasures t0 frustrate the operation of the act. 
All such measures proceeded upon the assumption, that exemp- 
tion from parliamentary taxation was an unquestionable right of 
the colonies ; and they derived much of their efficacy from the 
general conviction of that right. To have unsettled that con- 
viction, would have effected more towards the submission of the 
colonies, than could have been accomplished by all tlie remon- 



Chap. V.] THE REPEAL OF THE STAMP ACT. 349 

stranees and menaces of the English government. With many 
whoso feelings were warmly enlisted on the side of tlio people, it 
required but Utile persuasion or argument to establish that right. 
It was enough for them to know that it was a right, justified by 
the then condition of the colonics, and demanded for the perfect 
security of their liberties. They wanted neither prescription nor 
precedent, to give it sanctity; and they regarded it as a right, 
not to be lost by nonuser, nor prescribed against by contrary pre- 
cedent. They reasoned from the nature, objects, and proper se- 
curities, of government in general; and they reasoned rightly. 
Yet in all such controversies in every age, there are many who 
look for antiquity and acknowledgment as the test of such 
rights, and who resist as an usurpation what they would not in- 
sist upon as an original principle. The English ministry were 
aware of this ; and hence the English presses teemed with venal 
publications, striking at the very foundation of the colonial 
claim, which at one moment artfully appealed in the language of 
seeming justice and moderation to the colonists themselves, and 
at the next addressed themselves to all the jealousies and preju- 
dices of the mother country. This required an antidote ; and 
virtue and talent sprung up every where in the colonies to ad- 
ministei it. 

Conspicuous amongst all the essays of that day in opposition 
to the stamp act,, is one to the honor of which Maryland lays 
claim, as the production of her most distinguished son. It came 
r.^v nf nnnipt ^ rom t' 10 P en °f one > "hose VC1 7 name was a tower 
rvi-imf aeafnst of strength. Abilities that defied competition, learn- 

''i' : " L Lag thai ranged with an eagle-flight over every 
tice, accomplishments that fascinated, and gentleness that 

,, ,1 even envy, all conspired to render Daniel Dulany the 
fit advocate of such a cause. His celebrated essay againsl the 
stamp act, entitled, "Considerations on the propriety of imposing 
taxes in the British colonies, for ih< purpose of raising a reoemu 
by act of Parliament," was published at Annapolis on the 14th 
of October 1765. 1' wa« not an argument calculated merelj 
lor the meridian of Maryland. This province had a peculiar 
chartet exemption : but the claims founded <>n this, did nol entei 
into the consideration of ih<' general que tion and resting upon 
pxpn I hey wen rathei in conflict with those in upporl 



350 HISTORY FROM THE PASSAGE TO [Hist. View. 

of which no such grant could be adduced. Mr. Dulany had a 
higher aim. His purpose was to show, that under the principles 
of the British Constitution, and by force of their condition as 
British subjects, the colonists generally were exempt from the 
tax imposed ; and he has accomplished this, by a mode of argu- 
ment the most irresistible. Instead of putting himself afloat upon 
the whole question, as to the general extent of the authority of 
the mother country over the colonies, he narrows down the dis- 
cussion to the exact power exercised by the stamp act: the pow- 
er to impose internal taxes on the colonies, without their consent, 
for the single purpose of revenue ; and he then conducts the dis- 
cussion by appealing entirely to British authority and British pre- 
cedent. He thus drives his adversaries to the necessity of com- 
bating with the principles of the English constitution itself. 

This celebrated essay sets out with the position, that no inhabi- 
tant of the colonies was either actually or virtually represented in 
the English parliament. That there was no actual representa- 
tion, was conceded ; that there was a virtual repre- 

Its outlines. 

sentation, was sustained by analogies drawn from 
the condition of the non-electors in England, who were deemed 
to be represented, although not participating in the election of 
representatives. Without assailing this idea of a virtual repre- 
sentation, which is in fact a mere cover to the partial and imper- 
fect nature of the representative system in England, and, for the 
sake of the argument, conceding its existence to be tantamount 
to actual representation, he proceeds to show the entire failure of 
the analogy, from the entire dissimularity between the condition of 
the non-electors in England and of the colonists here. The former 
had the capacity to become electors, by acquiring the property 
to which the elective franchise attached; the latter could not, but 
by losing their residence in America, and therefore, ceasing to be 
colonists : from their common residence in England, all the re- 
lations and interests of the former, were closely connected or 
blended with those of the electors, so that legislation could sel- 
dom, if ever, be brought to bear upon those of the former without 
affecting those of the electors; the latter had many important in- 
terests, entirely distinct from those of the mother country, which 
might be seriously affected by such legislation, whilst it would not 
reach the interest of a single English elector; the former had no 



Chap. V] THE REPEAL OF THE STAMP ACT. 351 

other representatives, were subject to no other taxing power if 
not to that of parliament, and had always been thus taxed ; the lat- 
ter were subject to a regular and adequate authority to tax, vested 
in their colonial legislatures, and to that authority, the requisitions 
of revenue by the English government had always been addressed. 
The position, " that the colonies were not represented in Parlia- 
ment," being established, their exemption from taxation by it was 
the necessary consequence of an essential principle of the En- 
glish constitution, resulting from the very nature of the mixed 
government of England, existing at the common law, confirmed 
by Magna Charta and the Bill of Rights, following the emigrants 
as British subjects, and yet further guaranteed to them by the 
charters of their colonies. These charters, in conferring English 
liberties, were not mere grants of the crown in derogation of the 
superior power of Parliament, but compacts with it, for 
better security, that the existing and unalienable rights of the 
English subject should not be impaired by his removal. "This 
right of exemption from all taxes, without their consent, (says he) 
the colonists claim as British subjects. They derive this right 
from the common law, which their charters have declared and 
confirmed; and they conceive, that when stripped of this right: 
whether by prerogative or by any other power, they are, at the 
game time, deprived of every privilege distinguishing free men 
from slaves." 

He then passes, in review, the previous exercises of parliamen- 
tary power, relied upon as precedents, for the purpose of demon- 
strating, that they were elicited by a necessity, to which the or- 

The remedy dinary colonial legislation was not adequate, and 

.'.j iin-t colonial .1 , ,i • i 

■ion indi- that in no instance was revenue their single or even 

direct purpose ; and he concludes his argument by 
suggesting to his countrymen, a remedy against the oppression.'. 
of England, aa novel, as it was efficient. The suggestion of it 
displays his far-reaching sagacity, and proclaims him the genu- 
ine father of the genuine American system. England manufac- 
tured for the colonies ilio very necessaries of life. He advised 
the colonies to manufacture for themselves. His language 
worthy of preservation. After directing the attention of the pub- 
lie particularly to the manufacture of coarse clothing, he r» 
marks: " In this very considerable branch, so little difficulty is 



352 HISTOKY FROM THE PASSAGE TO [Hist. View. 

there, that a beginning is half the work. The path is beaten, 
there is no danger of losing the way, there are directors to guide 
every step. But why should they stop at the point of clothing 
laborers; why not proceed, when vigor and strength will in- 
crease with the progression, to cloathe the planters ? When the 
first stage is arrived at, the spirits will be recruited, and the second 
should be undertaken with alacrity, since it may be performed 
with ease. In this too, the experiment hath been made, and hath 
succeeded. Let the manufacture of America be the symbol of dig- 
nity, the badge of virtue, and it will soon break the fetters of 
distress. A garment of linsey-woolsey, when made the distinc- 
tion of real patriotism, is more honorable and attractive of respect 
and veneration, than all the pageantry, and the robes, and the 
plumes, and the diadem of an emperor without it. Let the emu- 
lation be not in the richness and variety of foreign productions ; 
but in the improvement and perfection of our own. Let it be 
demonstrated, that the subjects of the British empire in Europe 
and America are the same, that the hardships of the latter will 
ever recoil upon the former. In theory it is supposed, that eixh 
is equally important to the other, that all partake of the adversity 
and depression of any. The theory is just, and time will cer- 
tainly establish it ; but if another principle should be ever here- 
after adopted in practice, and a violation deliberate, cruel, un- 
grateful, and attended with every circumstance of provocation, 
be offered to our fundamental rights, why should we leave it to 
the slow advances of time (which may be the great hope and 
reliance, probably, of the authors of the injury, whose view it 
may be to accomplish their selfish purposes in the interval) to 
prove what might be demonstrated immediately. Instead of 
moping, and puling, and whining to excite compassion ; in such 
a situation, we ought with spirit, and vigor, and alacrity, to bid 
defiance to tyranny, by exposing its impotence, by making it as 
contemptible as it would be detestable. By a vigorous applica- 
tion to manufactures, the consequence of oppression in the colo- 
nies to the inhabitants of Great Britain would strike home and 
immediately. None would mistake it. Craft and subtilty would 
not be able to impose upon the most ignorant and credulous; 
for if any should be so weak of sight as not to see, they would 
not be so callous as not to feel it. Such conduct would be the 



Chap. V.] THE REPEAL OF THE STAMP ACT. 353 

most dutiful and beneficial to the mother country. It would 
point out the distemper, when the remedy might be easy, and a 
cure at once effected by a simple alteration of regimen." 

Such' was the general tenor of this distinguished essay, which 
at once placed its author in the first rank amongst the political 
writers of that day. It had all the characteristic features of ef- 
fective political essays ; its style easy, its thoughts perspicuous, 
its illustrations simple, its language energetic, and its arguments 
addressed to every understanding. Although not published un- 
der the name of Mr. Dulany, it wanted no such voucher to de- 
signate him as its author. It bore the impress of his talents, and 
espoused his known sentiments. Public opinion at once point- 
ed to him as its author ; and his own ready avowal clearly indi- 
cated, that concealment had not been his purpose in the manner 
of its publication. The objects of the essay, and the course of 
the author, were characterised by the same moderation. Upon 
the question of right, the essay was free, fearless, and uncom- 
promising ; but the modes of resistance to the stamp act, incul- 
cated by it, were of a gentle and pacific character, not altogether 
adapted to the temper of the times, but not less effectual than 
open rebellion against the act if resolutely adhered to. Open 
and forcible resistance was the mode of opposition recommend- 
ed by the feelings of the colonists; and they at once adopted it 
with an impetuous indignation, which never paused to calculate 
the hazard of their measures, nor to contemplate their probable 
results. Yet the proposition to erect an independent govern- 
lnt nt, would at that period have startled the boldest; and the 
force to which they resorted, was not regarded as a step towards 
actual separation from the mother country. For such a crisis, 
the feelings of the people and the resources of the colonies were 
ool yet prepared. Whilst the hand of violence was every where 
uplifted to repel the act, it was accompanied by remonstrances 
and supplications, which spoke the wishes of men still clinging 
to the justice and generosity of their opponents for their hopes 
of relief. Ultimate reconciliation with England, was then the 
wish and hope of ever) heart; and therefore some of the best 
friends of the colonies doubted the policy of harsh measures, a* 
only calculated i" u idea ihr- breach, and prolong the oppression! 

Go norm aid Dr. Franklin,) and tell your countrymen to get 
15 



354 HISTORY FROM THE PASSAGE TO [Hist. View. 

children as fast they can." " Shake off the trammels of your indus- 
try, (said Mr. Dulany,) rely upon your own resources for the sup- 
plies of life ; and the commercial interests of England will soon 
bring your adversaries to your feet." The subsequent conduct 
of the latter, was in perfect keeping with the course of opposi- 
tion he recommended; and therefore maintaining his original 
policy, he refused his approbation to the more violent measures 
adopted and accomplished by "the sons of liberty." (18) The 
character and result of those measures will appear hereafter; 
and it will here suffice to remark, that although brought to bear 
upon Mr. Dulany himself, as one of the resisting, they lost him 
none of the confidence and affection of the colony. For pro- 
fessional learning and general ability, he had long been conspic- 
uous ; as the defender of colonial liberties, he now acquired more 
extensive and gratifying distinction. He became the Pitt of Ma- 
ryland ; and whilst his fellow citizens hailed him, with one voice, 

(18) Mr. Dulany, during this period, was the Secretary of the Province : 
and when the association of the sons of liberty was formed, he, and the 
other officers of the province, were notified of their intention to come to An- 
napolis and compel the officers to transact business without the use of stamped 
paper. Thus notified, he submitted himself to the advice of the Governor 
and Council, apprising them at the same time, that in acceding to this mea- 
sure, he would act against his own sentiments, and would not hesitate to lay- 
down his office to avoid such an issue, were it not that by so doing, he would 
cast upon the governor the necessity of making a new appointment requiring 
the use of stamped paper, and with it a responsibility, which might bring 
even the person of the latter into jeopardy. " He (says Mr. Dulany in his 
letter to the Executive) seems to have as little power to protect himself as I 
have : but if that respect should be openly and violently trampled upon, and 
personal indignities be offered, the example and the consequences would be 
much worse in his case, than in that of a subordinate officer constrained to 
yield to the times." The council seem to have put this application under 
" an advisure: " and in the meantime the sons of liberty came, and placed Mr. 
Dulany, as well as the others, in the condition of "officers constrained to yield 
to the tunes." Thus to have thrown himself into the breach, for the protec- 
tion of the governor, and at the hazard of all the reputation he had acquired, 
evinced a magnanimity which even his enemies must admire. The honors lav- 
ished upon Mr. Dulany after the repeal of the Stamp Act, abundantly demon- 
strate, that his course on this occasion had, in no degree, diminished the re- 
spect and affection of the colony, and furnish the strongest possible attesta- 
tions to the purity of his motives and the consistency of his course. 



Chap. V.] THE REPEAL OF THE STAMP ACT. 355 

as the great champion of their librrticw, eV en foreign colonies, 

in their joyous celebrations of the repeal of the act, did not hesi- 
tate to place him in their remembrances with a Camden and a 
Chatham. (19) 

All eyes were now turned to the continental Congress, which 
assembled at the city of New York on the first Tuesday of Oc- 
rroceoiincs or tober, 17G5. In that Congress, there appeared 

the Continental ° ' l l 

Congress. twenty-eight deputies, representing the several 

states of Massachusetts, Rhode Island, Connecticut, New York, 

(19) " To die and be forgotten," is the common fate of mortals; the stern award 
from which talents and learning are ever striving to escape. For the ideal exis- 
tence of the future, the being which dwells in a name, how many have foregone 
all the enjoyments of the present. The ambitious heart, in every age yearning 
for immortality, has toiled away existence, as the caterpillar, in the construe* 
tion of its own monument. As each generation passes down the stream of time, 
with all its wrecked hopes and promises and fading glory around it ; it i9 
succeeded by another as full of vanities and delusive expectations. Each 
wave of life may whelm some votary of fame, sinking to oblivion in the 
midst of all his bright anticipations ; yet men look on, and hope that such 
is not their doom. If lessons upon the vanity of human hopes would avail, 
here is an individual, over whose history we might, pause, to learn how insuf- 
ficient are all the brightest qualities of the mind, to rescue the memory of 
their possessorf rom the common doom of mortality. But half a century has 
gone by ; and the very name of Daniel Dulany is almost forgotten in his na- 
tive State, where the unquestioned supremacy of his talents was once the 
theme of every tongue, and the boast of every citizen. 

In the colonial history of Maryland, the name of Dulany is associated 
with virtue and abilities of the highest order. Daniel Dulany the elder, the 
father of the distinguished person alluded to in the text, was as conspicuous 
amongst cotemporaries, as his more accomplished son ; and enjoyed a repu- 
tation in the province, surpassed only by that of the latter. Of his origin 
trly history, I have been unable to collect any accurate information. 
II is admitted to the bar of the provincial court in 1710; and from that 
period, his career was one of uninterrupted honor and usefulness. For nearly 
forty years, he held the first place in the confidence of the proprietary, and 
the affections of the people. During that period, lie filled the various offices 
of Attorne* G of the Admiralty, Commissary General, Agent 

and ReceirerGem i J, I Councillor, the latter of which he held under the 
successive administrations of gorarnora Bladen, Ogle, and Sbarpe. He was 
lor several years, a member of the lower bouse, in which capacity he 
was distinguished ier of the country party, in the controversy about 

the extension of the English 

Hi^ son, Danii I Dulany, d ii v e may use rooh a term) is said to 



350 HISTORY FROM THE PASSAGE TO LHkit. View. 

New Jersey, Pennsylvania, Delaware, Maryland, and South Ca- 
rolina ; and amongst them were present all the commissioners 
appointed on the part of Maryland. The proceedings of that 
Congress have already heen recorded by abler pens. Their de- 
claration of the rights and grievances of the colonies, their ad- 
dress to the crown, and their petition to the parliament, are doc- 
uments which would confer imperishable honor upon any age, 
or any people. Denying the right, and exposing the impolicy, of 
measures destructive of the dearest interests of the colonies, their 

have been educated in England, and was admitted to the bar of the provincial 
court in 1747. In 1757, he was appointed one of the Council, and in 1761, 
the Secretary of the Province, which offices he held in conjunction from the 
latter period until the American revolution. For many years before the 
downfall of the proprietary government, he stood confessedly without a rival 
in this colony, as a lawyer, a scholar, and an orator ; and we may safely 
hazard the assertion, that in the high and varied accomplishments which 
constitute these, he has had, amongst the sons of Maryland, but one equal 
and no superior. We may admit, that tradition is a magnifier, and that men 
seen through its medium and the obscurity of half a century, like objects in 
a misty morning, loom largely in the distance. Yet with regard to Mr. Du- 
lany, there is no room for such illusion. " Youmay tell Hercules by his foot," 
says the proverb ; and this truth is as just, when applied to the proportions 
of the mind, as to those of the body. The legal arguments and opinions of 
Mr. Dulany, which yet remain to us, bear the impress of abilities too com- 
manding, and of learning too profound, to admit of question. Had we but 
these fragments, like the remains of splendor which linger around some of 
the ruins of antiquity, they would be enough for admiration. Yet they fall 
very far short of furnishing just conceptions of the character and accom- 
plishments of his mind. We have higher attestations of these, in the testi- 
mony of cotemporaries. For many years before the revolution, he was re- 
garded as an oracle of the law. It was the constant practice of the courts of 
the province, to submit to his opinion every question of difficulty which 
came before them ; and so infallible were his opinions considered, that he 
who hoped to reverse them was regarded " as hoping against hope." Nor 
was his professional reputation limited to the colony. I have been credibly 
informed, that he was occasionally consulted from England upon questions of 
magnitude : and that in the southern counties of Virginia adjacent to Mary- 
land, it was not unfrequent to withdraw questions from their courts and 
even from the Chancellor of England, to submit them to his award. Thus 
unrivalled in professional learning, according to the representations of his co- 
temporaries, he added to it all the power of the orator, the accomplish, 
ments of the scholar, the graces of the person, and the suavity of the gcntlo- 
man. Mr. Pinkney, himself the wonder of his age, who saw but the setting 



Chap. V.] THE REPEAL OF THE STAMP ACT. 357 

eloquent vindication of colonial rights is fraughl with appeals, to 
the reason, the justice, and the sympathies of their proud riders, 
fidl of that manly expostulation which made him of old tremble 
upon his throne. If the English people and government had 
hitherto considered the movements in the colonies, as the off- 
spring of a temporary excitement, which their power would soon 
awe or influence into submission; there was enough in these 
papers alone, to dispel the illusion, and to teach them, that they 
had now to deal with a people cool and sagacious, who knew the 
value of their rights, and were prepared for every hazard in their 
defence. By their constituents, their proceedings were hailed 
with exultation and pride. At the ensuing session of 1705, they 
were submitted to the Assembly of Maryland hy its commission- 
ers ; when after full examination, they were unanimously approv- 
ed; and the speaker of the house directed, by its unanimous 
vote, to present its thanks to the commissioners, for their con- 
duct in the execution of the trust reposed in them, which was 
done in the most flattering manner. ('20) 

The stamp paper had now arrived ; and the governor again 
applying to the lower house for advice, they informed him, that 
Policy of the it would not be agreeable to the sentiments of their 

lb ministry . . 

at t ti i3 period, constituents, to give him any advice upon the sub- 
ject ; and the consequence was, that acting again under the di- 
rection of the upper house, it was ordered to be retained on 
board the vessel, as the only mode of securing it from destruc- 
tion. (21) A more resolute course was suggested by, and would 

splendor of Mr. Dulany's talents, is reputed to have said of him, "that even 
amongsl 5 uch men as Fox, Pitt, and Sheridan, he had not found his superior." 
w haterer wei i of his course during the revolution, I have never 

heard them ascribed, either to opposition to the rights of America, or to a ser- 
rilegubm.il riews of the ministry: and I have been credibly inform- 

ed, that he adhered, throughout life, to the principles advanced by him in 
opposition to the stamp a< •:. The conjecture may be hazarded, that had he 
not been thrown into Collision with (he leaders ol the revolution in this State, 

by the proclamation controversy; and thus involved in discussions with 
theni, which excited huh resentment <»n l><>th Bides, and kept him at a dis- 
tance from them until the revolution began ; he would most probably have 
been found by their side, in support of the measures which led to it. 

(90) Journals of Lowet B November, 1766. 

(21) Journals of Lower House, Cth November, 1766, W. II. 1 1 Hi Deer 



358 HISTORY FROM THE PASSAGE TO [Hist. View. 

have been morn acceptable to, the English ministry; but if the 
governor's inclinations had even approved of the course suggest- 
ed, he knew too well his own weakness, and the temper of the peo- 
ple with whom he had to deal, even to attempt the execution of 
the act. In a letter of the 24th Oct. 1765, addressed to him by 
Mr. Secretary Conway, he received instructions contemplating 
the use of military force even at that early period. " If (says 
the secretary,) by lenient and persuasive methods, you can con- 
tribute to restore that peace and tranquillity to the provinces, on 
which their welfare and happiness depend, you will do a most 
acceptable and essential service to your country. But having 
taken every step, which the utmost prudence and lenity can 
dictate, in compassion to the folly and ignorance of some mis- 
guided people, you will not, on the other hand, fail to use your 
utmost efforts, for the repelling all acts of outrage and violence, 
and to provide the maintenance of peace and good order in the 
province, by such a timely exertion of force as the occasion may 
require ; for which purpose you will make the proper applica- 
tions to general Gage, or lord Colville, commanders of his ma- 
jesty's land and naval forces in America. For however unwil- 
lingly his majesty may consent to the execution of such pow- 
ers, as may endanger the safety of a single subject; yet can he 
not permit his own dignity and the authority of the British legis- 
lature, to be trampled on by force and violence, and in avowed 
contempt of all order, duty, and decorum." (22) How tender 
the mercy which kindly assured the subject, that if he would but 
lie still and be trampled upon, he should not be dragooned into 
submission ! ! ! The reply of governor Sharpe to this letter ap- 
prised the secretary, that his majesty's subjects in the colony of 
Maryland, preferred their own powers of defence even to his ten- 
der mercies. He assured the secretary, that although the distur- 
bances in the province had not mounted as high as in some of 
the other colonies, he believed that this was owing entirely to 
the early and precipitate flight of the stamp distributor, and to 
his own prudent policy in preventing the landing of the stamp 
paper ; and that had Mr. Hood attempted to execute his office, 
it would not have been in his power to protect him. "Had I 

(1-2) Council Proceedings, Liber S. R. and U. S. 402. 



Chap. V.] THE REPEAL OF THE STAMP ACT. 359 

not been convinced, (says he in conclusion) that it would be 
impossible, without a considerable military force, to carry the 
act of parliament into execution here, while it was opposed so 
violently in the other colonies, I should have called upon Mr. 
Hood to execute his office, and have promised to support him 
in discharge of his duty ; but after the proceedings of the peo- 
ple of New York, in the presence of general Gage and a body 
of his majesty's forces, I presume that nothing more could be 
expected from me under such circumstances, than to preserve 
peace and good order in the province until I could receive his 
majesty's instructions." 

Hence it may be truly said, that the province of Maryland was 

never polluted, even by the attempt to execute the stamp act. All 

the majesty of the crown and of the parliament, was insufficient 

to give it even a foothold in this colony. Yet al- 

Artml operation 

of the Btamp act though never permitted to have any direct onera- 

ii) Maryland. ..... „ . 1 

tion, it indirectly produced, for a short time, a par- 
tial cessation of the public business, where stamps were made 
necessary for its transaction. Upon the commerce of the pro- 
vince, it appears to have had but very little operation : for in 
the beginning of the year 17GG, the collectors generally, relying 
upon the impossibility of procuring stamps, were in the constant 
practice of granting clearances without them. (-23) The county 
court of Frederick county, in November, 170">, had solemnly 
decided, that the act was unconstitutional and void, and had 
proceeded to the transaction of their business, without paying 
the least regard to its requisitions. (21) And there is reason to 

(23) Green's Gazette of 30th January, 17C6. 

(24) This decision of the county court of Frederick, was celebrated in 
j'n deriok town, on the 30th of November, 17lj5, in a manner most character- 
istic of the times. We regret that the limits of this work will not pi rmit us 
to give, at large, the very amusing description of it published in Gre 
Gazette of ICth December, 17G."). The mode of celebration, was a funeral 
procession, in honor of th« death of the stamp act, terminating with a ball ! 
the persons in proceision were the Sons of Liberty ; the principal mourner, 
Zachariah Hood ; and the personification of the stamp art, u coffin, with thi 
inscription on the lid, " The stamp art, expired of a mortal s i from 
tlm rjenius of Liberty in Frederick County court, 23d November, I ! 65 

22 days." 

The proceeding's of wmc of the other counties al thi period, manifest the 
highest indignation. At a me. Lin 1 1 au n of Talbot county, h< Id 



360 HISTORY FROM THE PASSAGE TO [Hist. Vievr. 

believe, that this course was generally pursued in the counties. 
But it was otherwise as to the provincial court, and the principal 
state offices. 

The same energy which repelled the introduction of the act, 
was soon elicited to correct its indirect operation in putting a 
stop to the public business. On the 24th February, 17G6, a large 
oripm and re- number of the principal inhabitants of Baltimore 
sodatkiVof tife c °u nt y, assembled in Baltimore town, and organi- 
se ^ Liberty. ze dt hemselves, as an association for the mainten- 
ance of order, and the protection of American liberty, under the 
name of the Sons of Liberty. Thus associated, they entered into 
a resolution to meet at Annapolis, on the first of March ensuing, 
for the purpose of compelling the officers there, to open their 
offices, and to transact business without stamped paper. This 
design was immediately communicated to the inhabitants of the 
neighboring counties, who were invited to co-operate in it, by 
the formation of similar associations. (25) The officers, at whom 
their resolutions were aimed, were afterwards notified, in very 
polite terms, of their intended coming, and advised to be in rea- 
diness to receive them. (26) True to their promise, on the first 
of March, they assembled at Annapolis in considerable number ; 

the 25th of November, 1765, the following amongst other resolres were enter- 
ed into: " Resolved, that we will detest, abhor, and hold in the utmost contempt, 
all and every person or persons, who shall meanly accept of any employment or 
office relating to the stamp act, or shall take any shelter or advantage from 
the same ; and all and every stamp pimp, informer or favorer of the said act ; 
and that we will have no communication with any such persons, nor speak to 
them on any occasion, except it be to upbraid them with their baseness. And 
in testimony of this, our fixed resolution, we have this day erected a gibbet, 
twenty feet high, before the court house door, and hung in chains thereon, the 
efligy of a stamp informer, there to remain in terrorem, until the stamp act is 
repealed." Green's Gazette of 1st December, 1765. 

(25) Green's Gazette of 6th March, 1766. 

(26) One of these very polite notifications is preserved in the Council 
Records. It runs thus : 

Sir, the shutting up of the public offices, and thereby impeding justice, be- 
ing of the greatest consequence to the community, the Sons of Liberty have 
resolved to assemble at the city of Annapolis, on Friday, the 28th inst., in or- 
der to obtain that justice which has been so long withheld; and of this you are 

to take notice, and be at home to receive them. Hereof fail not, at your 

Your obedient servants, — Sons of Liberty. 



Chap. V.] THE REPEAL OF THE STAMP ACT. 361 

the associators of Anne Arundel and Baltimore being personally 
present, and those of Kent appearing by deputy. Upon their 
organization, it was resolved, that a written application should be 
preferred, to the chiefjustice of the provincial court, the secreta- 
ry, the commissary general, and the judges of the land oflice, re- 
quiring them to open their respective offices on the 31st March, 
or earlier, if a majority of the supreme courts of the northern 
governments should proceed in their business before that period: 
and that in the event of their acceding to this request, they 
should receive a written indemnification, signed by the Sons of 
Liberty. The replies which they received, although not direct 
refusals, were not entirely satisfactory; and the associators, after 
issuing invitations to the other counties to unite with them, by 
forming similar associations, adjourned to meet again at Annapo- 
lis, on the day assigned to the officers, for the purpose of witnes- 
sing the issue of their application. (27) On the day appointed, 
they again assembled, and repaired in a body to the provincial 
court, to present and enforce their petition. It was at first per- 
emptorily refused by the court ; but the Sons of Liberty were 
not now to be denied. " It was again earnestly insitft <l upon, and 
demanded, by the Sons of Liberty, (says the writer of thai day in 
-i\ing his account of that transaction) with united hearts and 
voices;" and such applications, at that period, were too well under- 
stood to be resisted. The court yielded, and passed an order in 
conformity to their petition; of which an attested copy was de- 
livered to the associators. The other officers immediately acce- 
ded, without further opposition. Thus was consummated, in Ma- 
ryland, the nullification of the stamp act. (28) 

At this period the stamp act was virtually dead, throughout 
thru hole American colonies. It had been buried alive; and the 
liberty pole was every where planted upon its grave. Then 

(27; G Gazette of r.tli March, 1766. 

(28) Green'i Gazette of 3d April, 17CG. The Provincial court adjourned 
immediately, withoul • any business, it is somewhat remarkable, 

that although tlii- order was made and published in the paper of the day, 
mi i n try of it mu made upon tin- minutes o! tin- court Perhaps tin- court did 
not coneider thai then was perfect lecuritj in the indemnification of thi 

, and prudentlj resolved to haw no record-evidenci ""i- 

taith my I 
tti 



362 HISTORY FROM THE PASSAGE TO [Hist. View. 

inefficacy of the was n0 power in mere legislation to resuscitate it. 
cSeTgener'ai! Th e colonists had already set that at naught. Roy- 
ly> al instructions and persuasions would not avail. 

They too had fallen lifeless. Yet in the midst of this great moral 
triumph of public sentiment over law, the resolves, addresses, and 
declarations of the colonies, abound with expressions of attach- 
ment to the government and constitution of England. Like him 
of old, avowing his allegiance to truth, their language was, " we 
love our king, we love our country, but we love our liberties bet- 
ter." Near as it was, they did not yet look to a state of indepen- 
dence. The alternatives of independence or unqualified submis- 
sion, were not yet distinctly presented to their minds. They 
still hoped and believed, that there was no deliberate design to 
enslave them ; and that the late measures were the projects of a 
temporary ministry, which would ultimately be disowned by the 
English nation, when the rights and feelings of the colonists 
were fully presented to its view, and its own interests in connex- 
ion with them dispassionately considered. In these opinions 
they were encouraged, by the opposition to the measures which 
existed in England itself, and the exhortations to constancy which 
they occasionally received from their friends there. 

The commercial interests of England, were principally on the 
side of the colonies ; upon the prosperity of whose commerce, 
their own so largely depended. (29) The anti-ministerialists in 
Opposition in some measure espoused the same cause, which was, 
England. m t j ie | r hands, not a wea p 0n f defence for the colo- 

nies, but one of offence against the ministry. When measures are 
unsuccessful, they are seldom able to withstand such an opposition. 
A change in the ministry, to the advantage of the colonies, had 
taken place as early as July, 1765. The Rockingham admi- 
nistration then came into power, freed from the odium which 
attached to the Grenville ministry, for having projected this 
system of taxation ; and although they continued to lend their 
aid to it, as a system established by law, which they were bound 
to carry into effect as far as practicable ; they did not enter with 

(29) See the letters of a committee on the part of the merchants of London, 
to Daniel Dulany and the merchants of Maryland, of 28th February, 1766, 
announcing the probable repeal of the stamp act, in Green's Gazette of May 
15th, 1766. 



Chap. V] THE REPEAL OF THE STAMP ACT. 3tf.j 

eagerness into its support, as proper to be continued and enforced 
upon the colonies. Their intended course as to the stamp act, 
appears to have been at first doubtful; but the ensuing session of 
Parliament presented accumulated evidences of hostility to it, 
sufficient to satisfy them, that military force alone could carry it 
into effect. The great Commoner, Mr. Pitt, now brought the 
whole force of his influence, and yet undiminished eloquence, to 
the side of the colonists: and the ministry prudently resolved 
upon a compromise. 

Upon the motion of one of their members, a series of resolu- 
tions were now adopted, as salvos to the concession they were 
Absolute repeal aDout t0 niake. Some of these reprobated, in severe 
language, the resolves, addresses, and proceed- 
ings of the colonies, in resistance to the act; and one of them 
asserted, in the broadest terms, the right of the English parlia- 
ment " to make laws to bind the colonies, and people of Ame- 
rica, as subjects of Great Britain, in all cases whatsoever." The 
sovereignty of parliament being thus reserved in paper by protes- 
tando, the stamp act was fully and absolutely repealed, on the 
18th of March, 17G6, for the ostensible reason, "that its further 
continuance might be productive of consequences greatly det- 
rimental to the commercial interests of Greal Britain." The van- 
quished Lion of England could yet roar. The colonies, how- 
ever, were content with the act of repeal; and regarded but lit- 
tle, the reasons in which it was wrapped, and the protestations 
by which it was surrounded. They knew full well, that their 
own energies had accomplished their deliverance ; and they 
were but little troubled with the assertion of parliamentary supre- 
macy, so long as it rested on mere assertion. They wore the 
victory, as became the cause in which it was won. It was fol- 
lowed by no idle exultation, to mock die power they had foiled, 
no menaces to provoke afresh the injuries they had escaped. 
The oil of kindness and joy was poured over the resentments 
of the past; and an indignant people, almosl prepared to burst 
the bonds of colonial dependance, became again the willing, 
obedient, and grateful subjects of England. It required but 

knnli and continued respect for their rights, <>n the part of 

the mother country, to have restored, in all its original fresh- 
ness and vigor, their returning attachment. But the .spirit of 



364 HISTORY FROM THE PASSAGE, &c. [Hist. View. 

arbitrary power had not yet departed from the colonial policy of 
England. It slept, soon to wake ; and it awoke, only to con- 
summate the liberties of the colonies. The history of its last 
struggle but adds another proof, that the lessons which such a 
spirit learns in adversity, are never remembered for its instruc- 
tion. 



CHAPTER VI. 



HISTORY FROM THE STAMP ACT TO THE REVOLUTION. 

The beginning of a design is half its accomplishment; but 
this proverbial truth is justly applied, only when the beginning is 
Character and followed up with energy and perseverance. The 
rfpeln o'f the nrst ste P g"' es n0 vantage ground, to the timid or 
stampact. irresolute ; and if once retreated from, it can sel- 

dom be regained. Those who draw the sword upon the liber- 
ties of a people, jealous of their rights, and ready for resistance, 
must throw away the scabbard. To sheathe it in the face of 
their resistance, is an admission either of weakness or of appre- 
hension, which takes away from any future attempt the power to 
alarm into submission. Such was found to be the result of the 
first and futile effort of the English parliament against the liber- 
ties of the colonies, under the cover of the stamp act. The de- 
signs of that act were in contemplation, long before its passage. 
It was preceded by an advance guard of acts and resolves, an- 
nouncing its coming, and intended to test its reception in the 
colonies; and by a proffer to the latter of the choice of the tax, 
;r- the condition of Bnbmission. Yet its coming was hailed by 
no friendly voice. The colonists denied its power, and spurned 
w- alternatives. Still the lesson was lost upon a ministry, act- 
ing as if they wished to respect the feelings of the colonies, and 
rai disregarding them when ascertained. The purpose was ad- 
hered to, and the act passed. It fell upon the people at whom 
it was aimed, only to convert their entreaties and remonstran- 
ces into defiance, and their opposition into open rebellion. 
Piofetaing all due submission to the mother country, they resist- 
ed its laws; and all due respect for their sovereign, they disc* 
beyed his command! and expelled his officers. Force, and that 



366 HISTORY FROM THE STAMP ACT [Hist. View. 

too a force adequate to the entire subjugation of this free and 
unyielding people, was all that remained to give efficacy to the 
law ; but the circumstances of the times concurred to prevent its 
exercise. A formidable opposition at home now came to the 
aid of colonial resistance; the arm of the English government 
seemed shortened that it could not save itself; and a new minis- 
try, conforming to the temper of the period, procured the repeal 
of the act. The power asserted by that act, was not, however, 
surrendered at discretion. The right to impose the tax was still 
asserted, but the tax was repealed ; and such an assertion of 
right, was like a claim to victory established by a retreat. The 
character of the repeal could not be disguised. It was but the 
interment of a law, which had already become a dead letter ; and 
the epitaph proclaimed a motive for the repeal, which nobody 
believed. The act was recorded as a martyr to the commercial 
interests of England, whilst all knew that it had fallen before the 
resistance of America. 

To the colonies, the triumph over this act, was more than the 
mere victory of the moment. It was the victory of a first effort. 
It was achieved over a measure adopted with deliberation, and 
influence of the abandoned only when the energies of the English 
stamp^act con- government seemed unequal to its accomplishment, 
the colonies. j t jj a d ren d ere( i their people familiar with the extent, 
nature, and value of their political rights; and had given every 
man, a reason for the faith that was in him. It had rallied for 
the support of their liberties, in the very councils of the mother 
country, a body of English patriots, distinguished by their talents, 
and formidable by their power. But above all, it had revealed to 
them their own strength, and the means most efficient in its exer- 
cise. The French war had done much, to bring the people of 
the several colonies into close connection and more frequent 
intercourse. The stamp act effected more. It taught them to 
combine, as well for the protection of their liberties against ty- 
ranny, as of their territories against war. Such a combination 
naturally promoted amongst them, the most harmonious and un- 
restrained intercourse. The former apprehensions of danger from 
confederation were allayed ; mere provincial jealousies were 
dispelled ; conflicting customs and manners were reconciled ; 
American liberties became the watch word ; and the colonists 



Chap. VI.] TO THE REVOLUTION. 307 

were already, in their own estimation, not the mere citizens of 
petty and distinct settlements, but members in common of the 
great American family. The very spectacle of an American Con~ 
gress, assembled for the defence of American rights, dissolved 
half the charm of colonial dependence. Such an issue to such 
a controversy, was truly "the beginning" of the proverb to the 
colonies. 

After the repeal of the stamp act, the affairs of Maryland remain- 
ed in a state of tranquillity, evolving no incidents worthy of remem- 
brance; until a new occasion arose, for testing the capacity of 
the colonies, to improve the beginning they had 

Rerival of the r f . . 

design to tax the made in the common defence of their liberties. 

coloniet. . 

This occasion was soon presented, by a new system 
of colonial taxation, established by Parliament, in 1767. The 
origin of this system, as unfolded by the writers of that period, 
was in perfect correspondence with its policy. It sprang from a 
minister, who, as described by one of his ablest cotemporaries, 
was eminently talented and eloquent, yet vain and ostentatious of 
power, even to weakness; intrepid in his course, but versatile in 
his purposes ; a devotee of generous fame, yet stooping to court 
applause even from the mouths of fools. Such was the man, who 
is said to have been goaded into the measure of American taxa- 
tion, by the mere imputation of the fear of attempting it. " You 
dare not tax America," (said Grenville, the late minister, still 
clinging to the repudiated principles of the stamp act;) and 
Townshend resolved upon the tax, to repel the charge of timidity. 
We would expect such an origin for such a measure. It was still 
the mere assertion and establishment of the right to tax: and its 
successful issue was only to acquire for T/Ownshend, ever thirsting 
for novelties, and ambitious of succeeding where other men had 
failed, the honor of having accomplished bis rain-glorious boast, 
"that he knew how to draw a revenue from the colonics without 
giving them offence." He could not have selecti d a more unfor- 
tunate period for the experiment, nor have recommended it with 
a more unhappy expression. 

His vaunted modi- of effecting tin- <!< i rn, consisted merely in 
imposing the tax, by way of a fluty on articles of import. The 
imposition of these duties, was considered but the exerci e of h 



368 HISTORY FROM THE STAMP ACT [Hist. View, 

conceded power to regulate the commerce of the 

Nature and poli- ' . . 

cy of the mea- colonies, and to be justified by the distinction origi- 

sure selected for , ' 

its accomplish- nally drawn by tlie colonists themselves, between 
internal and external taxation. There was a period, 
when this insidious approach might probably have passed with- 
out scruple, or at least would not have provoked open rebellion. 
Oppressive as were the restrictions upon colonial trade, im- 
posed as the preludes to the stamp act, it required the exer- 
cise of the novel power involved in the latter, to rouse into 
open and unbending resistance, the discontents occasioned 
by the former. An acknowledged right may, for a long time, 
cloak or protect the abuses of that right ; and men will sub- 
mit to oppressions practised under cover of a legitimate power, 
which would not for an instant be tolerated, if they sprang 
from the exercise of a questionable authority. The power to 
regulate and restrict their commerce at pleasure, was early esta- 
blished, and had been long exercised over the colonies. It was 
one under which Grenville, by adopting the system afterwards re- 
sorted to by Townshend, might possibly have sheltered in securi- 
ty his design of taxation. He, however, preferred the open 
assault by a measure, whose avowed object was revenue, and 
whose instrument was internal taxation. He failed; and his 
failure sapped even the foundations of the acknowledged power. 
The oppressions of the restrictive system, were mingled, in the 
public mind, with those of the stamp act; the power over com- 
merce came to be considered, as a mere right to promote it by 
beneficial regulations, and not to impair or dry up its resources • 
and the distinction between internal and external taxation, was 
now generally regarded, as utterly unsound, when applied to justi- 
fy taxation, without consent, for the mere purpose of revenue. 
These views were the natural result of such a controversy, as 
that occasioned by the stamp act ; and its favorable termination 
seemed to have given to them the stamp of authority. Hence we 
find, that after the repeal of this act, in the more commercial 
colonies, the restrictions upon their trade were, in general, con- 
sidered nearly as odious and illegal, as the system just abolished. 
To expect a people thus situated, fresh from discontents, flushed 
with victory, and yet unreconciled to existing restrictions, to sit 
down tamely under the power just resisted and just abandoned, 



Chap. VI.] TO THE REVOLUTION. 869 

merely because it came in a new garb, betrayed cither a gross 
ignorance of their character am! sentiments, or an utter destitu- 
tion of political sagacity. As if to render the expectation more 
preposterous, the avowed objeel <>!' the author of this new scheme 
was taxation for the purpose of revenue, and the v&rj preamble to 
the act declared this to be its purpose. We w ould scarcely suppose 
that even common sagacity could have expected, that a nation of 
intelligent freemen, after meeting and repelling the open assault, 
would fall into such an ambuscade. Yet it was doom ; and who 
wonders at the conduct of the doomed? 

In the face of all these considerations, the views of Townshend 
and the ministry were adopted ; and an act of parliament was finally 
passed on the 2d of July, 1767, imposing the new duties on paper, 
Dutyaciof i7»i7 glass in all its varieties, tea, red and white lead, and 

and the acts ac- 

companying it. painters colors, as amongst the artjcles of most neces- 
sarv consumption; the duties to take effect after the 20th of No- 
vember ensuing. As if to impart to it new features of oppression, 
this act was accompanied to the colonies by others passed about the 
same period, whose objects entitled them to rank as its fellows. 
The Legislature of New York had dared to disobey the requisi- 
tions of the mutiny act, so far as it required them to tax themselves 
for the support of the stationed royal troops; and therefore, by 
one of these acts, it was put under the ban of the empire, and 
prohibited from all further legislation until this was yielded. By 
another, the collection of the customs was put under new regula- 
tions : and a board of commissioners was established to superin- 
tend the trade of the colonies, with powers of appointment and 
rights of search of a highly alarming nature. 

Such combustibles were enough to kindle aflame; and they 
were soon followed by their probable results. Remonstrances 
oppnmtinn <■( an( ' invectives of the ino-i exciting character wire 
mSSSSlS'^i 1( ' '""-'• "I""' these acts, in every quarterof the 
Ma»»acbu*etu. colonies, ,,,,,! m every form, from the loftj essays of 
Mr. Dickinson, to the humble pasquinade. The feeling of the 
country sprang up every trhere to meel the appeal to ite ener- 
gies : and tin -pint of Opposition was SOOn furnished with the 

expedients of resistanci . The apprehensions expressed in one 

of the celebrated letters of Mr | ..n, did |>nt speak the 

alarm which perraded the whole country. " It is true, isavs he) 
17 



370 HISTORY FROM THE STAMP ACT [Hist. View. 

that impositions for raising a revenue, may be hereafter called re- 
gulations of trade ; but names will not change the nature of 
things. Indeed we ought firmly to believe, what is an undoubted 
truth, confirmed by the unhappy experience of many states, that 
unless the most watchful attention be exerted, a new servitude 
maybe slipped upon us under the sanction of usual and respecta- 
ble terms." So feared the people of the colonies generally: and so 
fearing, they were soon roused to measures of resistance. The 
colony of Massachusetts, at all times jealous of her liberties, and 
keenly sensible of every thing that affected her commercial in- 
terests, was again foremost in the proposition of expedients. 
Her Assembly being convened in January, 1768, a petition 
against these acts, distinguished by its ability and elevated senti- 
ments, was addressed by it to the crown, and accompanied by let- 
ters inviting the co-operation of some of the most prominent and 
efficient friends of the colonies in England. But its most effec- 
tual measure was its circular, then addressed to the colonial As- 
semblies generally, detailing its own operations and inviting their 
concurrence. 

The Assembly of Maryland was not convened after the pas- 
sage of these obnoxious acts, until the 24th of May, 1768 ; but 
in this instance, as in the case of the stamp act, a 

Attempts to en- . . . « . 

list the Assembly spirit of indignant opposition was excited, tar in 
£;iinst a the de- advance of the Assembly transactions. From the 

siens of the Ma*- . . c , , _ , 

fMichusetts circu- very annunciation ot these measures, the press of the 
colony, the Maryland Gazette, teemed with all the 
publications of the day, in opposition to them ; and with ex- 
hortations to stand by the other colonies. The public senti- 
ment in Maryland, was already matured: and the Massachusetts 
circular received a prompt and cordial welcome from its As- 
sembly. That circular, as the signal of colonial concert, and 
the precursor of another American Congress, struck terror to 
the hearts of the British ministry ; who hitherto seemed to 
have rested in security, under the unaccountable belief, that 
the colonies would not again fly to the union, by which they 
had accomplished their former deliverance. That delusion was 
now dissipated, but it was succeeded by another equally as sin- 
gular. They fancied, that their menaces had power to prevent 
the colonics from listening to the npponls of that circular : and 



Chap. VI.] TO THE REVOLUTION. 371 

in the very injunctions intended to produce that effect, they cha- 
racterised it by terms of denunciation, Bufficient to have ensured 
it a favorable reception even with the most careless and the least 
excited. The very dread of concert manifested by the ministry, 
was enough to indicate to the colonists, that in it lay their hopes 
of safety. In the circular of 21st April, 17CS, addressed by the 
Earl of Hillsborough, the English Secretary of State, to Sharpe, 
governor of Maryland, (which corresponds in its tenor with 
those addressed to the governors of the other colonies,) the Mas- 
sachusetts letter was depicted "as one deemed, by his majesty, 
to be of a most dangerous and factious tendency, calculated to 
inflame the minds of his majesty's good subjects in the colonies, 
to promote an unwarrantable combination, to excite and encour- 
age an open opposition to, and denial of, the authority of par- 
liament, and to subvert the true principles of the constitution :" 
and the governor was instructed to exert himself to the utmost, 
in the endeavor to frustrate its designs. If, however, his ma- 
jesty's great confidence in his subjects of Maryland should prove 
to be misplaced, and the Assembly sliould manifest any disposi- 
tion to give countenance to the proceedings of Massachusetts, 
he was directed to cut short its inclinations by its immediate 
prorogation or dissolution, upon the empirical notion, that to 
close the ordinary orifice of a sore was to heal it. The mes- 
sage of Governor Sharpe was the mere echo of these injunc- 
tions: (1) and the admirable reply of the lower house their coun- 
tercheck. 

"In answer to your Excellency's message, (says thai reply,) 
we muBl obeenre, that if the letter from the Bpeaker of the House 
,.■ of tbc "'" Representatives of the colony of Massachusetts, 
'nX':!;: be the same with the letter, a copy of which, you ar< 
ten,|,u - pleased to intimate, hath been communicated to the 

king's ministers; il is very alarming to find, at a time when thi 
people of America think themselves aginie'ved h) ibe late acts ol 
parliament imposing taxes on them, l"r the sole and express pur- 
pose of raising a revenue, and in the mosl dutiful manner ar< 
seeking redress from the throne, anj endeavors to unite in lav- 
ing before the throne, what is apprehended i" !><■ their jus! com« 

I ) Journals of House of Di legates of -JMIi Jane, 17G8. 



372 * HISTORY FROM THE STAMP ACT [Hist. View 

plaint, should be looked upon 'as a measure of most dangerous 
and factious tendency, calculated to inflame the minds of his 
majesty's subjects in the colonies, to promote an unwarrantable 
combination, to excite and encourage an open opposition to, and 
denial of, the authority of parliament, and to subvert the true 
principles of the constitution.' We cannot but view this as an 
attempt, in some of his majesty's ministers, to suppress all com- 
munication of sentiments between the colonies, and to prevent 
the united supplications of America from reaching the royal 
ear. We hope, the conduct of this house will ever evince their 
reverence and respect for the laws, and faithful attachment to the 
constitution : but we cannot be brought to resent an exertion of 
the most undoubted right of petitioning the throne, or any en- 
deavor to procure and preserve an union of the colonies, as an 
unjustifiable attempt to revive those distractions, which, it is said, 
have operated so fatally to the prejudice of both the colonies 
and the mother country. We have the warmest and most affec- 
tionate attachment to our most gracious sovereign, and shall ever 
pay the readiest and most respectful regard to the just and con- 
stitutional power of the British Parliament : but we shall not be 
intimidated by a few high-sounding expressions, from doing what 
wc think is right. The House of Representatives of the colony 
of Massachusetts, in their letter to us, have intimated, that they 
have preferred an humble and loyal petition to the king, and 
expressed their confidence, that the united and dutiful supplica- 
tions of his distressed American subjects will meet with his royal 
and favorable acceptance, and we think they have asserted their 
rights, with a decent respect for their sovereign, and a due sub- 
mission to the authority of parliament. What we shall do upon 
this occasion, or whether in consequence of that letter we shall 
do any thing, it is not our present business to communicate to 
your excellency: but of this be pleased to be assured, that we 
cannot be prevailed upon, to take no notice of, or to treat with 
the least degree of contempt, a letter so expressive of duty and 
loyalty to the sovereign, and so replete with just principles of 
liberty : and your excellency may depend, that whenever we ap- 
prehend the rights of the people to be affected, we shall not fail 
boldly to assert, and shall steadily endeavor to maintain and 
support them, always remembering what we could wish never to 



Chap. VI.] TO THE REVOLUTION. 373 

be forgot, that by the bill of rights it is declared, 'that it is the 
right of the subject to petition the king, and all commitments 
and prosecutions for such petitioning are illegal.' " (2) 

Aware of the general injunction of the crown to the colonial 
governors, to prorogue or dissolve their Assemblies, if they ma- 
Proceedin of nifested any inclination to second the designs of 
?n e dppo e sUion U w tne Massachusetts circular, the lower house had 
the duty act. taken care to perfect all their purposes, before they 
returned this caustic reply. That circular was brought under 
the consideration of that house, as early as the 8th of June, 
1768: and a committee was then appointed, consisting of gen- 
tlemen distinguished for their abilities and attachment to the 
cause of the colonies, to draft a petition to the king, remon- 
strating against the late impositions. (3) Before the report of 
that committee had been received, the message of the governor 
above alluded to was thrown in upon the house, as if for the pur- 
pose of checking their proceedings: but the latter discreetly de- 
layed their reply, until their purposes were accomplished. Hav- 
ing perfected their petition to the king, and adopted a series of 
resolves declaratory of their rights, their reply to the mes- 
sage of the governor was now submitted, adopted, and borne to 
him by the speaker, attended by the whole house. The governor 
was at the same time informed, that they were ready for adjourn- 
ment ; and the Assembly was accordingly prorogued : but the 
transactions of the lower house were so well timed, that the pro- 
rogation seemed to have proceeded from their own request. (4) 
The transactions of this house, at this session, in oppo- 
sition to the new system of taxation, were characterised by the 

same unanimity which marked the proceedings of 
CbanelM trf .% » • •_ . 

proceed- the Assembly in resistance to the stamp act; and 

their memorials, in vindication of their liberties, 

(2) Journal of House of Delegates of 22d June, 17GR. This message of 
tho lo\rrr DOOM was submitted by Thomas Johnson, then a delegate from 
Anne Arundel, and afterwards the first governor of Maryland under the 
etatc government. 

(3) This committee consisted of William Murdockof Prince George's, 
Thomas Johnson of Ann.- Arundel, Thotuaa Ringgold of Kent, John Hall 
of Anne Arundel, James Holyday of Queen Anne's, Mathew Tilghman of 
Talbot, and Thomas Jennings of Frederick. 

(4) Journals of House of Delegates, 8th, 20th, 31ft, and 32d June, 1768. 



371 HISTORY FROM THE STAMP ACT [Hist. View. 

are at once firm and temperate, fearless and dignified. Their 
resolves assert, as the exclusive right of the Assembly, the power 
to impose taxes, and to regulate the internal polity of the co- 
lony ; and denounce as unconstitutional all taxes or impositions 
proceeding from any other authority. Their petition to the 
king may safely challenge a comparison with any similar paper 
of that period, as an eloquent and affecting appeal to the justice 
of the crown. Deducing their claim to relief from their ac- 
knowledged rights as British subjects, and the peculiar exemp- 
tions of their charter, they press it upon the crown in the fol- 
lowing manly and dignified language : 

"Our ancestors firmly relying on the royal promise, and upon 
these plain and express declarations of their inherent, natural, 
and constitutional rights, at the hazard of their lives and for- 
tunes, transported themselves and families to this country, then 
scarcely known, and inhabited only by savages. The prospect 
of a full and peaceable enjoyment of their liberties and proper- 
ties, softened their toils, and strengthened them to overcome in- 
numerable difficulties. Heaven prospered their endeavors, and 
has given to your majesty a considerable increase of faithful 
subjects, improved the trade, and added riches to the mother 
country. 

" Thus happy in the enjoyment of the rights and privileges of 
natural born subjects, have they and their posterity lived, and 
been treated as freemen, and thus hath the great fundamental 
principle of the constitution, that no man shall be taxed, but with 
his own consent, given by himself, or by his representative, been 
ever extended, and preserved inviolate in this remote part of 
your majesty's dominion, until questioned lately by your parlia- 
ment. 

" It is therefore with the deepest Sorrow, may it please your 
most excellent majesty, that we now approach the throne, on 
behalf of your faithful subjects of this province, with all humility, 
to represent to your majesty, that by several statutes, lately 
enacted in the parliament of Great Britain, by which sundry 
rates and duties are to be raised and collected within your ma- 
jesty's colonies in America, for the sole and express purpose of 
raising a revenue, this great fundamental principle of the consti- 
tution is in our apprehension infringed. 



Chap. VI.] TO THE REVOLUTION. 375 

" The people of this province, royal sire, are not in any manner, 
nor can they ever possibly be, effectually represented in the Bri- 
tish parliament, While, therefore, your majesty's commons of 
Great Britain continue to give and grant the property of the peo- 
ple in America, your faithful subjects of this, and every other 
colony, must be deprived of that most invaluable privilege, the 
power of granting their own money, and of every opportunity of 
manifesting, by cheerful aids, their attachment to their king, and 
zeal for his service; they must be cut off from all intercourse 
with their sovereign, and expect not to hear of the royal appro- 
bation ; they must submit to the power of the commons of Great 
Britain; and, precluded the blessings, shall scarcely retain the 
name of freedom." 

This petition, as well as those of the other colonies at this pe- 
riod, speak the language of men, who hoped success for their 
Non-importation appeals, and trusted to them for relief. Yet such 
Association. an i n f erence would be erroneous. The recent 
measures of the English ministry were sufficient to satisfy the 
most incredulous, that such expectations were delusions. These 
remonstrances looked to a different purpose. They were the 
mere cautionary measures of a people, determined to be in the 
right, and to make the rejection of their entreaties a justification 
for resistance. The alarm of slaves leads to submission; the ap- 
prehensions of the free-man do but arouse his energies and nerve 
his spirit. The merW^ of the English ministry, falling upon 
such a people as the Americas, were the mere signals for resist- 
ance; and the colonies now betook themselves to a mode of op- 
position, less questionable and dangerous than open rebellion, 
but far more effectual than mere supplications. They had dis- 
covered in their opposition to the stamp act, that the most irre- 
sistible appeal to the reelings of a tyrannical government is that 
which reaches them through its interests; and that the English 

people were always sensitive and vulnerable, to every measure 
operating injuriously upon their commerce. Tins was "iheun- 
dipped luil" which no armor of laws could protect. During 
that controversy, the colonists' had partially adopted a non-impor- 
tejfMS system, which was followed by the happiest results. It 
broughl to the side of America the greal body of English mer- 
chants interested in her trade, who fell the attack upon he* liber- 



37G HISTORY FROM THE STAMP ACT [Hist. View. 

ties as an attack upon their own fortunes. The history of that 
struggle leads us to the conclusion, that without the co-opera- 
tion of the interested merchants, the efforts of the English patri- 
ots in parliament, for the protection of the colonies, would in all 
probability have proved ineffectual. The time had again arrived 
for the appeal to the pocket nerve ; and it was now more ap- 
propriate, because besides its indirect consequences, it gave the 
colonies power to withdraw themselves peaceably from the ope- 
ration of the new impositions, by declining the consumption of 
the articles upon which they were laid. A non-importation sys- 
tem had not only the effect of repelling the approach of taxa- 
tion ; but it also compelled them to that most effectual safeguard 
of their independence, dependence on themselves and their own 
resources. It made them manufacturers by necessity; and the 
habit once introduced, the recurrence to it became more easy 
in any future emergency. Thus recommended by its present and 
ultimate results, the difficulties of the present crisis soon suggest- 
ed a return to this system. 

The proposition to revive it at this period, originated with one 
of the political clubs of Boston ; and, as early as October, 1767, 
General revival !t received the sanction of a public meeting in that 
of lt- city, over which the distinguished James Otis pre- 

sided as moderator. For reasons which it is not necessary to de- 
tail, it did not then enlist the concurrency of the other cities, 
and was soon abandoned by the BojPMrans themselves. (5) 
But if then premature, it was njflv th" last peaceable resort. 
Remonstrances had failed; and petitions were called factions. 
The proposition was therefore revived in April, 1768; and let- 
ters were then addressed by several merchants of Boston and 
New York to the merchants of Philadelphia, soliciting their con- 
currence in its adoption. By the latter, it was declined as still 
premature ; but the design was not therefore abandoned. On 
the 1st of August, 1768, a non-importation association was 
formed in Boston, which was followed, in the course of that 
month, by similar associations in New York and Connecticut. 
The measure was not, however, generally adopted, until the en- 
suing session of parliament had dispelled all hopes of relief from 

(5) 1st Gordon, 148. Green's Gazette of 19th November, 1767. 



Chap. VI. J TO Tiffi REVOLUTION. 377 

the justice of England. Abandoning their scruples upon the 
results of that session, the merchants of Philadelphia acceded to 
the association in April, 1769 ; and their accession was immedi- 
ately followed by that of Maryland and Virginia. (6) 

In Maryland, there had been previously several county associ- 
ations of this description ; but it was now deemed necessary, to 
its adoption iii gi ye them a more imposing character and effective 
Maryland. operation. At the solicitation of many gentlemen 

of the different counties, a circular was therefore addressed, on 
the 9th of May, 1769, by Messrs. Dick and Stewart, M'Cubbin, 
Wallace, and W. Stewart, merchants of Annapolis, to the people of 
the several counties, inviting a general meeting of the merchants 
and others at that place, "for the purpose of consulting on the most 
effectual means of promoting frugality, and lessening the future 
importation of goods from Great Britain." The meeting was ac- 
cordingly held on the 20th June, 1769; and was very fully attended. 
A non-importation association was then established by that meet- 
ing, for the whole province ; which was similar, in its general 
character and objects, to those of the other colonies. It con- 
tained a general engagement, that the associators would not di- 
rectly nor indirectly import, nor be concerned in the importation 
of, any species of merchandise, which then was, or might there- 
after be, taxed by parliament, for the purpose of raising a reve- 
nue in America, except where orders for the import had already 
been given ; and th^Jtey would consider such taxation as an 
absolute prohibition of#he article taxed: and also an agreement 
not to import a groat variety of other enumerated articles, which 
were to be excluded as luxuries or superfluities. The association 
was formed upon the principle of excluding every thing not ac- 
tually necessary to subsistence, and of thus assailing vitally the 
whole commerce of England with the colonies. It forbade 
also the purchase of any of tho prohibited articles, even 
if imported by others: and was sustained by amoral sanction, 
carrying irith it, at that period, more rflicacy than even the 
penalties of ordinary legislation. All persons contravening 
the objects of tho association, were to be denounced as enemies 

(6) Gordon, 163 and 168. Green's Gazette of 22d September, 1768, and 
CMh May, 1709. 

1- 



378 HISTORY FROM THE STAMP ACT [Hist. View. 

of the liberties of America, ami to be held up to public view for 
reprobation and contempt: and to bring every person within it3 
operation, twelve copies of it were printed for and transmitted to 
each county for general signature. (7) This association was 
sustained in vigorous operation, by the same machinery employed 
to render efficient the similar associations of the other colonies* 
It was under the care of the whole body of associators, and the 
particular supervision of special committees, appointed by the 
associators of each county, and charged with the duty of inquir- 
ing into, and reporting the facts, of every case of actual or sus- 
pected violation of the agreement. During its existence, several" 
of such cases arose in Maryland, from the proceedings connected 
with which we learn, that the association was for a long time kept 
up with great vigor and unanimity (8) Certain it is, that there was 
no colony, in which the objects of the system were adhered to- 
with more faithfulness, or infractions of it hunted up and pursued 
with more rigor. 

The association was scarcely adopted in Maryland, before the 

spirit, which had prompted a resort to it, began to flag in some of the 

other colonies : and in the course of the year 1769, va- 

Its r6sults 

rious causes concurred yet further to abate it. In May 
of that year, a circular was addressed to the colonies, by Lord Hills- 
borough, still Secretary of State, which gave to them the assurance 
that the ministry had no design of proposing any further taxes upon 
America for the purpose of raising reven^^and that it was their 
intention, at the next session of parliament, to propose a repeal 
of the duties on glass, paper, and colors, because imposed con- 
trary to the true principles of commerce. (9) The cupidity of 
some of the merchants seized upon this assurance, as a pretext 
for relaxing the restrictions upon importation. Evasions of them 
became more frequent: and jealousies soon sprang up amongst 

(7) Green's Gazette of 11th May, and 29th June, 1769, the last of which 
numbers publishes the articles of association at large. 

(8) Green's Gaz.ctteof 28th Sept. and 28th Dec. 1769; 15th Feb. 1st of 
March, 19th and 26th of April, 3d, 24th, and 31st May, 12th, and 26th of 
July, and 2d, 9th, and 23d August, 1770. 

(9) See Mr. Burke's comments upon this circular, in his celebrated speech 
upon American taxation. 1st Burke's works, 445. 



Chap. VI.] TO THE REVOLUTION. 379 

the merchants of the principal cities, to excite the apprehension, 
that by their strict adherence to them, they were only throwing 
the profits of their trade into the hands of less scrupulous 
rivals. 

Agreeably to the assurances of Hillsborough, and upon the 

motion of the ministry, the duties alluded to in the circular were 

filially repealed on the 12th of April, J770: but the 

General seces- 

jsion from in duty upon tea was still retained, as a pepper-corn 
rent, (as another has justly remarked,) to denote 
the tenure by which the colonics held their rights. Before 
this repeal, several of the New York merchants had seized 
upon the promise of it, and the mutual distrusts of the 
cities as to the strict observance of the system, to sanction 
a proposition to abandon the latter, so far as it prohibited 
the importation of articles not subject to duties imposed for re- 
venue. The proposition was resisted elsewhere, as an abandon- 
ment of the principles of the association: but it was, neverthe- 
less, finally adopted by a large body of the New York merchants, 
in July, 1770. The defection of the New Yorkers now concur- 
red with the repeal, to render impracticable the effectual main- 
tenance of the general system. Their secession was accompa- 
nied by the protest of many of their fellow citizens, and was 
followed by the severest reprehensions of the sister colonies: 
but it soon produced results fatal to the system. That unan- 
imity and cordialiiy,%vhich had hitherto been its principal 
support, were now withdrawn: and the other cities found it ru- 
inous to adhere to an agreement, sustained to their prejudice 
(inly. The example of New Vork was followed, in September, 
by the partial secession of the merchants of Philadelphia : and 
the latter, by the general secession of the Bostonians iu the en- 
suing month. 

Jn Maryland, the defection of the New Porkers was at first re- 
ceived with general indignation : and by manj of the county asso- 
ciations, the seceders were denounced as enemies of their country, 
wnh whom they would no longer hold any correspondence. N 
who can fetter the opirit of which on< d " [ts leger is its 

bible, and its gold its god ?" The examples ofothei cities opened 
the door to escape : and the opportunity was first embraced at a 



380 HISTORY FROM THE STAMP ACT [Hist. View. 

meeting of several of the merchants of Baltimore, on the 5th of 
October, 1770. The resolves oi that meeting solicited a general 
convention, for the purpose of determining upon the expediency of 
rescinding the association, so far as it related to articles not taxed, 
and avowed the determination to secede from it to that extent, 
if such convention were not held. Under these resolves, a ge- 
neral meeting was held at Annapolis, on the 25th of October, at 
which were present, the committees from several counties, a 
large majority of the representatives in Assembly, some mem- 
bers of the council, and many other persons from various parts 
of the province. The sentiments of that meeting were entirely 
adverse to the proposition from Baltimore. They not only re- 
solved to adhere to the prohibitions of the original association, but 
they also denounced, in the harshest terms, the merchants of Bal- 
timore proposing the secession, and avowed their determination 
to hold no commerce with them, in the event of their with- 
drawal. (10) From the tenor of these resolves it seems manifest, 
that the general sentiment of the colony was in favor of adher- 
ence to the original restrictions of the system: but all hopes of 
sustaining these, were extinguished by the course of the Bosto- 
nians. The three great marts of America had now cast them 
off: and their further support in Maryland, was useless and 
impracticable. The records of that day do not inform us, at 
what period they were generally abandoned in this colony: but 
they furnish no evidence of any efforts to^sustain them after they 
were abandoned in Massachusetts. 

The controversy with the mother country thus mitigated, was 
now to be displaced by internal dissensions of a more engross- 
ing and exciting character. In their resistance to 

Proclamation a . . . ' 

and vestry act the impositions ot parliament, the people ol Mary- 
land had hitherto been struggling for the preserva- 
tion of an abstract principle of liberty, in opposition to their im- 
mediate wants and interests. The quantum of these impositions 
had not even been considered: and they were too limited, both 
as to their direct objects and their amount, to have produced ac- 
tual distress by their mere operation. Their oppression con- 
sisted, not in the payment of the tax, but in the assertion and 

(10) Green's Gazette of 11 th October and 1st November, 1770. 



Chap. VI.] TO THE REVOLUTION. 3b 1 

establishment of the parliamentary right of taxation. This was 
one of the remarkable features of that controversy, evincing, 
more than any other, the general prevalence of rational liberty, 
and the sagacity of the American people in guarding its out- 
posts. Men must be thoroughly imbued with principles, familiar 
with their operation, and endowed with intelligence to estimate 
the danger of remote encroachments upon them, before they will 
enter into a contest for them, prompted by no actual suffering. 
Other nations have risen, in the agony of distress, to shake off 
oppression : the American people stood erect and vigilant, to 
repel its approach. The internal administration of Maryland 
now brought up a controversy, in which its people were to renew 
their combat for the principle they had been sustaining against 
England, under circumstances bringing it nearer to their im- 
mediate interests. The advances upon their rights, now came 
in the shape of actual oppression, extending its operation 
to every citizen. This controversy related to what were fami- 
liarly called " the proclamation and tlie vestry act questions." From 
this period until the commencement of the revolution, all other 
subjects gave place to these engrossing topics. They elicited 
more feeling, and greater displays of talent and research, than 
any other question of internal polity, which had ever agitated 
the colony. The published discussions of them, which are pre- 
served to us, would fill volumes. They have long since lost 
their intrinsic interest: "but their general nature and objects are 
still worthy of remembrance, not only as illustrative of the go- 
vernment and character of the people of Maryland at that day, 
but also for their connexion with the history of some of her 
most distinguished citizens, whose names yet live to shed a lustre 
upon the land that gave them birth. Without fatiguing the reader, 
by spreading before him the many legislative and other docu- 
ments, relative to the protracted controversy, which grew out of 
these questions, we shall confine our remarks to its general 
cause« and n^ults. 

It has already been remarked, that the General Assembly of 
Maryland always retained its control over the officers of the pro- 
fummitarKcn vince, by its right to regulate their com pen Ml 14 >n for 

to^k?&da£ dsWsJ services: and that the fees of office were 

,,on - not only prescribed hv law, but nNo determined by 



3S2 HISTORY FROM THE STAMP ACT [Hist. View. 

temporary acts of short duration, upon the expiration of which 
the Assembly could withhold or reduce them at pleasure. One 
of these acts, passed in the year 1763, had been continued, from 
time to time, until October, 1770: and came up again for renew- 
al at the session of September, 1770. The system of official com- 
pensation established by that act, was that which had prevailed 
in the colony from a very early period. There were no salaries : 
but the officers were allowed definite fees for each act of service. 
These fees, as well as the public dues and the taxes for the 
support of the established clergy, were sent out every year to the 
sheriffs of the counties for collection. A particular period in 
each year was assigned, within which the lists of fees- were to be 
delivered to the sheriff, and by him to the party charged for vo- 
luntary payment. If that period was suffered to elapse, the 
sheriff was required to levy them by process of execution, and to 
account for them to the officers within another assigned period. 
Such were the general features of this system of collection, which 
we shall have occasion to examine more particularly hereafter. 
To the details of the act of 17G3, now coming up for re-enact- 
ment, many objections were made by the lower house : but so far 
as they related to the essential parts of the controversy about 
officers' fees alone, they consisted in the exorbitance of the fees 
attached to some of the principal offices, the abuses in the mode 
of charging, and the want of a proper system of commutation. 
The principal complaints about the exorbitance of the fees, re- 
lated to those of the provincial secretary, the commissary general, 
and the judges of the land office: and from the reports of that 
period, which enable us to ascertain the average annual receipts 
of those offices for several antecedent years, these complaints 
appear to have been justly founded. (11) The alleged abuses 

f 11) By many of our citizens, the fees and salaries of the state.offices, at 
the present period, are considered excessive. Vet there is no office in the 
State, wbose emoluments can be considered equal to those of any one of the 
above mentioned offices, during the pendency of this controversy. The re- 
ceipts of the secretary's office, for the seven successive years, from 17C3 to 
1769 inclusive, were 1,5G2,862 lbs. of tobacco: and the average annual re- 
ceipts 223,266 lbs. of tobacco. The annual average value of his fees in the 
Chancery Court during the same period was 39,326 lbs. of tobacco. His annu- 
al receipts from, these two souives was therefore 262,592 lbs. of tobacco; or, 



Chap. VI.] TO THE REVOLUTION. {S3 

arose principal!] from a practice, nol peculiai to thai day, of di- 
viding one service into several other enumerated services, with a 
view to the several fees. The commutation privilege of the act 
of 17(v'3, was objected to, as not sufficiently extensive. Tobacco 
was still the currency of the province. Officers' U~r±, and all 
public dues, were rated in it : and the' right to pay these in to- 
bacco, was, at first, considered a high privilege. To avoid the 
fluctuations in value, to which such a currency was necessarily 
subject, it obtained by law, a fixed specie value ; and in cer- 
tain cases, the specie was made receivable, in lieu of it, at the 
rate so fixed. The right to pay in specie, the lower house now 
desired to extend to all persons within the period allowed for 
voluntary payment. Although several of the propositions, grow- 
ing out of these objections, were at first resisted by the upper 
house, it seems probable from the tenor of its messages, that it 
would ultimately have yielded to all but that to reduce the fees. 
Here, however, was a source of invincible disagreement between 
the two houses: and unfortunately for the opposition of the 
upper, it was conducted by those directly interested against the 
reduction. Daniel Dulany, the provincial secretary, Walter 
Dulany, the commissar) general, and Benedict Calvert and 
George Steuart, the judges and registers of the land office, were 
all councillors, and of course members of the upper house. 
Their opposition was therefore regarded, as that of their own 
private interests to the general welfare : and all attempts at com- 
promise proved ineffectual. After much angry discussion, the 
Assembly was at length prorogued: and the province was left 
not only without any legal regulation of officers' fees, but also 
without any public system <br the inspection of tobacco, with 
which the former had for many years been connected. 

In this emcr Governor Eden resolved upon the expedient 

of regulating the fi < ■-. under the prerogatives of his office; and 
according' issued his proclamation for that purpose 

The Frorlnm.i. " * ' ' 

tkm: <" 'i'j"t on the 36th of November, 1770. Its avowed object 

and expedience. J 

was the prevention oi abuses and extortion on the 
according to the rate of commutation at that day, 4,376 dollan. The (t% 

of the land office, daring the MBW period, ridded 3,850,934 Hjs. of tokirrn. 
or annually, on an av. 176 lbt. or 6,876 dollars; and those of I 

commissary's office, annually, 235,438 lbs. of tobacco, or 3,02.1 dollars 



384 HISTORY FROM THE STAMP ACT [Hist. View 

part of the officers : and to effect this professed purpose, it re-estab- 
lished the fee bill of 1763, and required the officers to receive their 
fees in money, at the rate of commutation fixed by it, if tendered 
at the time of service. The occasion was unfortunate : the mea- 
sure most unadvised. There never was a period in the history of 
Maryland, when her people would have fully acquiesced in such 
an exercise of power. It was not, however, entirely novel ; but 
so far as the opinions and usage of the colony were to be con- 
sulted, the weight even of early precedent was decidedly against 
it ; and, in the general opinion, there was no charter power under 
which it could be sheltered. In the present instance, it defeated 
all the purposes of the lower house, by adopting the very 
system which they had refused to sanction. It was, therefore, in 
general estimation, a measure of arbitrary prerogative, usurping 
the very right of taxation which the colony had been so long 
defending against the usurpations of parliament. If the gover- 
nor had doubted about the reception of such a measure, there 
was enough to warn him, in some of the transactions of the 
Assembly, immediately before its adjournment. Whilst the fee 
bill was under discussion, and after the expiration of the law of 
1763, the judges of the land office, treating that office as the 
private institution of the proprietary, instructed their clerk to- 
charge and secure the fees agreeably to the provisions of the ex- 
pired law. A case, in which these instructions were pursued,, 
was immediately brought to the notice of the lower house; by 
whose order, the clerk was taken into custody and committed to 
prison. To effect his release, the governor prorogued the Assem- 
bly for a few days. This interference elicited from the lower 
house, upon its re-assemblage, an angry remonstrance, contain- 
ing an expression of public sentiment not to be misunderstood. 
"The proprietor (they remark,) has no right, either by himself, 
or with the advice of his council, to establish or regulate the 
fees of office ; and could we persuade ourselves, that you could 
possibly entertain a different opinion, we should be bold to tell 
your excellency, that the people of this province ever will oppose 
the usurpation of such right. "In venturing upon such a power, 
after such an admonition, the governor therefore sinned against 
light and knowledge ; and his measure ehared the usual fate of 



Chap. VI] TO THE REVOLUTION. 385 

those which set at naught the opinions, and sport with the liber- 
ties of a free and intelligent people. 

This earnest of opposition was soon redeemed. From the 
first appearance of the proclamation, it aroused, in hostility to 
Parties formed '*j tne great body of the people, with a spirit not to 
upon it. k e seduced from resistance, by the influence of 

talents, the menaces of power, or the soothing* of "llicial pa- 
tronage. Never was a measure of internal polity more thorough- 
ly investigated and discussed. Parlies were formed upon it, and 
drew to their aid every man of influence and abilities in the pro- 
vince. The arrangement of these parties may be deemed sin- 
gular ; yet it was similar to that which generally prevailed, not 
only in this province, but also in the other colonies, whenever 
parties were formed upon questions of political liberty. The 
governor and his courtiers, the officers and their adherents, and 
the established clergy, were arrayed against the great body of the 
people, sustained and led on in opposition by the great body of 
the lawyers. 

The fashion of the day is against the ascription, to the latter 

profession, of purposes and interests, compatible, and naturally 

course of the associated with those of the people at large. Point- 
Lawyers of Ma- , • -i 1 1 /• i r r 

ryiand. ed at as a privileged order, tor the pursuit of a proies- 

sion which generally rewards laborious talent with fame and for- 
tune; and as the hired advocates of right or wrong, because they 
stand by the landmarks of the law, to give certainty to justice, and 
to throw over every man its protection, which, falling like the 
rain from heaven upon the just and the unjust, if it sometimes 
shelter the guilty, is yet the security of the innocent : it is oft the 
humor of the times to involve tliein with the better sex in the 
common censure, — ''there is no living with them, nor without 
them." Vet tin-, profession is the natural ally of liberty. [ts 
pursuits habituate the mind to respeel for the authority of the 
law, in opposition i" prerogative, whether it come in the form 
of judicial constructions, or in the dispensations of arbitrary 
power. Tin) form babitt of inquiry and research, favorable i" 
the investigation of the principles of government! They inspire 
independence, and a linn adherence to opinions, by the very 
habit of opposition which they compel. B) their constant re- 
49 



39G HISTORY FROM THE STAMP ACT [Hist. View. 

quisitions upon the faculties of the mind, they " fit them for 
ornament, and whet for use." They throw their followers into 
frequent association with the people at large, acquaint them with 
their feelings and interests, and lead them to observe their pecu- 
liarities; and by being thus drawn near to them, if ihey become 
conversant with their vices, they also learn to respect their ri:;lits 
and feelings, and to estimate their virtues. Servility and venali- 
ty have sometimes prostituted the capacities of such a profession ; 
but its abuses are no argument against its proper and natural use. 
In the experience of the colonies it was always found, that when 
this did occur, the cause of the people always drew to it, from 
the integrity and talents of that profession, an antidote more 
than sufficient to counteract its influence. These remarks are 
prompted by a sense of justice to a body of men, so distinguish- 
ed, at every period of our colonial history, for their firm and 
fearless support of the constitutional liberties of the people ; 
and if it be objected, that they spring from one identified with 
them by his pursuits, let it be remembered that if history awards 
the eulogium, it matters not by whom it is pronounced. In the 
histories of other colonies, it has already been recorded : in that 
of this province, it lies prominent in every great controversy 
which agitated it. It has been seen, that in the long protracted 
differences with the proprietary about the extension of the 
English statutes, and in the more recent and dangerous opposi- 
tion to the stamp act, this class of citizens were active and effi- 
cient on the side of liberty. In the controversy of which we are 
now speaking, their agency was so remarkable, as to have 
brought down upon them and their profession, all the indigna- 
tion, invective, and raillery of the government party. In looking 
through the many anonymous publications of that day, on behalf 
of this party, we are struck with the virulence of their attacks 
upon the lawyers, to whose factious spirit, as they styled it, they 
ascribed the indignation of the people against the proclamation ; 
and with their constant endeavors, in a cant not peculiar to 
that day, to excite against them the jealousies of the people. 
In one of these publications, which is a fair specimen of the 
rest, the writer remarks, " Whence, in your legislative capacity, 
all this clamor about the officers and clergy, and not a word 
.about the lawyers, a set of men more truly expensive and bur- 



Chap. VI.] TO THE REVOLUTION. 387 

ilonsome to Maryland, than perhaps all the other orders of the 
community put together. Is not this, as a shrewd planter has 
remarked, to spare the blackbirds and kill the crows." (12) But 
all these efforts to sow the seeds of discord by such invidious re- 
flections, were lost upon men, too sagacious to reject their adhe- 
rents upon the advice of their adversaries. 

There were, however, on this occasion, two prominent excep- 
tions to their general couise, which strikingly illustrate the feeble- 

ihmici Dulany, ness of fame and talents, when employed, either to 
the defender of 

the prociiiniuikMi divert the public sentiment lrom what it deems the 
unquestionable rights of the citizen, or by the sanction of an im- 
posing name, to give a tone to the opinions of this profession. 
The name of Daniel Dulany is already familiar to the reader. It 
has been associated with recollections of our history, as honor- 
able to his country as to himself. By his able vindication of co- 
lonial liberties, "he had gathered golden opinions from all sorts 
of men ;" and with the most commanding abilities to retain the 
reputation he had acquired, he stood proudly pre-eminent in the 
province, at the commencement of this controversy, in all that 
gave rank and influence. Heretofore distinguished as the cham- 
pion of the colony against the tyranny of an irresponsible legis- 
lation ; in an evil hour he now became the defender of an exer- 
eise of prerogative, minor in its objects, but leading to the same 
mischievous results. He was, at this period, and had been for 
several preceding years, a member of the upper house, and the 
secretary of the province. The office of commissary-general 
held by his relative. The reduction of the fees of these 
offices was one of the prominent objects of the lower house, in 
cent difference with the upper; and in the discussions con- 
ed with that difference, Mr. Dulany was the prominent par- 
ti-. m of the upper honse. Hi- talents wen- supposed to con- 
trol every cause in which they were enlisted; and hence he was, 
by many, charged with having induced, by his persuasions, the 
issuing of the proclamation. This he always whemently denied, 
with the ino-t solemn assurances, that it was the unbiassed act of 
the governor, which had reeeited the approbation of the whole 
council; and the proceedings of that period certainly manifest 

(12) fircLn's Gazette ol" 27th June, 1 . 



388 HISTORY FROM THE STAMP ACT [Hist. View. 

the most hearty concurrence of the whole executive in its sup- 
port. By the force of these circumstances, he was identified 
with the measure ; and with a character too decided for neutrali- 
ty, and an intellect that never feared the grapple of argument, he 
did not hesitate to avow, in the face of opposition, that, in his 
opinion, it was both legal and expedient. 

For the first two years after the origin of the controversy, it was 
| principally conducted by the discussions between the two houses 
Controversy up- °*" A- ssem bly, an( l by oral appeals to the people. At 
between Duianv ^ ie c ^ ose °* ( bat period, it found its way to the press ; 
ron C of ir c C arron- an ^ t b en began a war of essays, as fierce as the war 
t0 " - of words which preceded it. It was opened, in the 

beginning of the year 1773, by a communication purporting to 
be a dialogue between two citizens, in which " The First Citizen" 
was the opponent of the proclamation : but the whole dialogue 
was so adroitly managed on the part of his adversary, with so 
many moderate and seemingly candid arguments, and so many 
gentle insinuations against the motives and consistency of the 
leaders of the opposition, that its purpose could not be mistaken. 
Another writer now assumed the name of " the First Citizen," to 
carry on the dialogue with more justice to the opposition ; and 
Mr. Dulany appeared as his antagonist, and the defender of the 
proclamation, under the new name of " Antilon." In " The First 
Citizen" Mr. Dulany encountered, as his opponent, Charles 
Carroll of Carrollton, the living signer of the declaration of in- 
dependence. Mr. Carroll is the descendant of a family establish- 
ed in the colony before the Protestant revolution. Charles Car- 
roll, his grandfather, emigrated to Maryland shortly before the 
accession of William of Orange ; where, during the continuance 
of the royal government, he rose so high in the confidence of 
the proprietary, as to receive from him, about the year 1711, the 
lucrative and responsible office of Agent and Receiver General 
of his revenue. To his son, Charles Carroll, he transmitted an 
ample inheritance, and an honorable name, by the improvement 
of which the former acquired a commanding respect and influ- 
ence with his Catholic brethren of the colony. Carroll of Car- 
rollton, who, like Nestor, has lived to see successive generations 
pass by him to the tomb, was born in Maryland about the year 
1737. Blessed with a father, whose will concurred with his for- 



Chap. VI.] TO THE REVOLUTION. 380 

tunes, to bestow upon him advantages in education enjoyed by few 
in this colony at that early day, he received his collegiate instruc- 
tion in the mpsl approved schools of France, and his legal edu- 
cation in the Temple at London. From the latter, he returned 
to his native province in 17GI; and although his religious per- 
Buasions excluded him from its councils, he is said to have parti- 
cipated in the common feeling of indignation against the stamp 
act, and to have contributed by his writings to the opposition to 
the more subtle, but not less dangerous taxation of commerce. 
This, however, was the first occasion on which he was brought 
conspicuously into view, in the public transactions; and he had 
now to deal with an able and experienced adversary, with whom 
victory was familiar, and from whom defeat was not disgrace. 
Mr. Dulany was his equal in education; his superior in age, ex- 
perience, and established reputation ; more conversant with the 
various interests and institutions of the colony; more skilled in 
the profound researches and practical applications of his profes- 
sion ; and to give these advantages still greater force, he was a, 
Protestant, and amongst the first in office and confidence under 
an exclusive Protestant government, and amongst a Protestant 
people. Mr. Carroll was a disfranchised Catholic, who, to the 
joint power of such weapons of attack, could oppose only the 
force of his cause, the resolute spirit, and the acquirements of 
a cultivated mind ; yet with such odds against him, he entered 
into the contest. 

Thus began a controversy, which was conducted through the 
Maryland Gazette, under these assumed names, for several 
months. It was kept up with great spirit: but it may be fairly 

i r of objected to the essays of both, that they deal too 
much in invective. It is manifest from the allusions 

ich, that he fully understood with whom he was combating; 
and hence tiie discussion abounds in personalities, some of 

which are now unintelligible, and all deserve to be forgotten with 
the feeling of the moment. Their essays are, also, crowded with 
quotations and classical allusions, winch would almost ascribe 

to them a conte-t lor the palm in learning, rather than the argU- 

m. 'lit ofa question of common interest, addressed to the general 
understanding wer< il Dot, thai they are explained or translated, 

Mr. Sheridan would say.j for the benefit of the country gen- 






390 HISTORY FROM THE STAMP ACT [Hist. View. 

tlemcn. Yet, with these defects, if the latter may be so called, 
they are political essays of a high order, taking a wide range 
through the doctrines of constitutional liberty, evincing much 
research, abounding in happy illustrations, and often pointed 
with the most caustic satire. In those of Mr. Dulany, we dis- 
cover every where the traces of a powerful mind, confident in its 
own resources, indignant at opposition, contemptuous as if from 
conscious superiority, and yet sometimes affecting contempt as 
the cover under which to escape from principles not to be resist- 
ed. In those of Mr. Carroll, Mr. Dulany is constantly covered 
with the character of the prime minister of the governor, prompt- 
ing the measure in controversy, for his personal interest and 
aggrandizement at the expense of the people. Availing them- 
selves of Mr. Dulany's position in contrast with his previous 
opposition to the stamp act, they array against him all the dan- 
gers of prerogative, as illustrated by the examples of history, and 
depicted in his own previous writings : and they speak every 
where the language of one, confident in his cause, conscious that 
he is sustained by public sentiment, and exulting in the advanta- 
ges of his own position. On behalf of the proclamation, it was 
contended by Mr. Dulany, that it was not the assumption of a 
power claiming to control law in the regulation of fees, but mere- 
ly acting where the law had ceased to operate, and enduring only 
until it resumed its operation ; that it was not therefore in conflict 
with the exercise of a similar power by the Assembly, but in sub- 
ordination to it, and was in no degree impugned by the doctrines 
and precedents of past Assemblies, claiming it as the proper 
power of legislation ; that it was sanctioned by several instances 
of its past exercise, and was now necessary to restrain official 
abuses, where the laws interposed no check ; that it was intended 
and operated for public benefit, and was therefore distinguished 
from exercises of dangerous prerogative ; that the mere regula- 
tion of the fees of previously established offices, was not taxation ; 
and that in England, where the taxing power was as exclusively 
in parliament, as here in the Assembly, the fees incident to such 
offices were rated by the courts without objection. To these 
arguments, it was replied by Mr. Carroll, that fees were taxes, 
both in legal parlance and according to the common acceptation ; 
that they were so considered by the most approved legal writers, 



Chap. VI.] TO THE REVOI.I TION 091 

and were such in their nature and operation; thai the regulation 
of fees by the English courts was not their establishment, but (lie 
mere ascertainment of them as previously and legally established, 
in contradistinction to those which had crepl in by abuse; that 
being a branch of the taxing power, it wi open to 

abuse with any other branch of it. and equally required the s 
guard consisting in the exclusit e exercise of it by the legislature ; 
that precedents, and especially precedents disputed at the time 
of their establishment, were of no avail against an exclusii e ricrht 
so sacred and necessary; that the precedents in ihis instance, 
were in opposition to the power, and not only demonstrated an 
utmost uninterrupted exercise of it by the Assembly, but also 
an express surrender of it by the governors, at a very early period ; 
and that the proclamation had not only exercised an exclusive 
power of the legislature, but had also usurped it against its will, 
and in the face of its remonstrances. These arc but the faint 
outlines of these elaborate essays, so distinguished at that period, 
so little known at this. (13) 

The efforts of Mr. Carroll, drew upon him several malignant 
but anonymous attacks, from other quarters, in which the effort 
Rendu of the u ;i< made to array against him the religious preju- 
dices of the province. He was stigmatised as a 
Catholic and a Jesuit, and reproached with his political dis- 
franchisement, as if it were a crime in him to defend the rights 
of a people, whose laws excluded him from the privileges of a 
citizen. "But when I saw," says one of theBe writers, "the 
man from whom this country hath reaped such solid advantages; 
the man who hut a few years ago stood forth in vindication of 
our then doubted rights ; to whom the whole continent hath 
paid its tribute of gratitude, and to whom the illustrious 
Pitt was wholly indebted foi hi- famous enthusiastic speech in 
support of America, held up ect of lawless fury, and thai 

too principally by one w ho doth nut enjoy the prh ilege of offer- 
ing his puny vote al an election, I c; nnol d< Bcribe what I then 
felt. I- it possible that the admiration of the author of "tin 

(\?>) The essays of Mr. Dulan] ublisbed in Grci ol 

7th January, 18tfa February, 3th April, and 3d June, 1773 *■ and those of Mr. 
Carroll, in tame of 4th 1 lit M rch, 6th May, and 1st July, 1773. 

They occupy nearly all the columns of these nunil" 



392 HISTORY FROM THE STAMP ACT [Hist. View. 

Considerations," affected in one place by this patriotic nursling 
of St. Omers, could escape you ? Doth not the haggard image 
of Jacques Clement, professing a zeal for the service of Henry 
III. of France, at the very moment he was summoning all 
the powers of his soul and body, to plunge his knife into his 
bowels, rush upon your thoughts?" (14) Such was the charac- 
ter of many of these inflaming appeals ; but they were addressed 
to a people who only the more appreciated a vindication of their 
liberties, coming from one to whose support they had but little 
claim ; and instead of rejecting his assistance, they learned from 
the instance, the folly of making human laws the regulators of 
conscience. In the results, Mr. Carroll certainly obtained a de- 
cided victory. The elections held in May, 1773, during the 
progress of this discussion, were attended with great excite- 
ment, and resulted in the complete triumph of the anti-procla- 
mation party. Immediately after this result, and upon the in- 
struction of public meetings held at Annapolis, and in the 
counties of Frederick, Baltimore, and Anne Arundel, the thanks 
of the people were formally presented to "The First Citizen," 
through their delegates elect. (15) He had now established a 
rank and influence in the province at large, which rendered him 
prominent in its councils and operations, in the consummation 
of independence, which was soon to follow. 

After the discussion was dropped by these combatants, a new 
advocate for the proclamation presented himself. John Hammond, 
Discussion be- who succeeded Mr. Dulany in the effort to rescue 

t ween Mr. Ham- . • r 1 i- • i- 1 

mond, and Mes- this measure from public indignation, was a lawyer 
Kon andPaca. of distinguished abilities, and hitherto a con- 
spicuous member of the Assembly. He was a delegate froni 
Anne Arundel, in the Assembly immediately succeeding the 
issuing of the proclamation : but at the new elections, in 
May, 1773, refusing adherence to the opposition party, and being 
fully satisfied that his sentiments were in opposition to those of 
the great body of his constituents, he declined being a candi- 

(14) Greeks Gazette of 25th March, 1773. 

(15) The letters of thanks, pursuant to these instructions, are preserved 
in Green's Gazette of 20th and 27th Maj, and 10th June, 1773. These, as 
well as tho instructions, preserve his assumed character, and are addressed 
to him as "First Citizen" 



Chap. VI.] TO THE REVOLUTION. 393 

date. Some of the publications consequent upon that election, 
having ascribed to him an improper interference with the mea- 
sures adopted by the people of his county to celebrate their 
victory, he at length published a vindication of his conduct, 
in which he entered into an elaborate defence of the proclama- 
tion. It displays abilities of a high order, but abounds, as 
Was usual with the political essays of that period, with harsh 
reflections upon the conduct and motives of the principal 
leaders of the opposition. He had thus thrown down the 
gauntlet: and the defiance was not long unanswered. Thomas 
Johnson, William Par.a, and Samuel Chase, all lawyers of emi- 
nence, distinguished members of the lower house, and leaders 
of the opposition, now entered the lists as his antagonists. The 
promises of Mr. Chase's early efforts against the stamp act, had 
been fully redeemed. Still the fearless champion of popular 
rights, his mind swayed, and his energy inspired confidence, 
wherever he moved. In his co-adjutors, on this occasion, he 
had men worthy to be called his peers. The reputation of 
Thomas Johnson, does not rest alone upon the memorials of 
our colonial history. It has a prouder record, in the history of 
his State, in the councils of the American nation. Distinguished 
as the first governor of Maryland, after her elevation to the rank 
of an independent State, and as one of her ablest representatives 
in the continental Congress, his efforts in this mere provincial 
controversy arc adverted to, not as the evidences of his charac- 
ter, but as the earnest of those virtues afterwards so conspi- 
cuous, in the discharge of his arduous and dangerous duties, dur- 
ing tin- darkesl hum- of the revolution. At this early period, 
be held a professional rank, and enjoyed a degree of public re- 
■ in hi- own colony, sufficient for enviable distinction. Mr. 
I' i had been, for several yens, tin- representative of Annap- 
olis, ami was now. at the early age of thirty-three, the compeer 
of such men as Mr. Johnson, and Mr. Chase. Engaged in the 
study of the law, at Annapolis, at the same period, and concur- 
ring in their general views of public rights ami policy, the foun- 
dation was there laid, of .-in intimacy and a personal attachment 
between Mr. Chase ami Mt. Paca, which endured throughout 
hie-. Tin- latter, more bland and conciliating in his demeanor, 
but as firm in his purposes, was found side by side with the 
• r >0 



394 HISTORY FROM THE STAMP ACT [Hist. View. 

former, in the transactions of this period, as the friend of private 
life, and the fellow-laborer in public duties. Thus bound to- 
gether by the firmest bonds of life, how beautifully was it or- 
dained that their names should pass down to after ages, associ- 
ated in the same close connexion on the Declaration of American 
Independence ! With such men as antagonists, and such a cause 
to sustain, there was fearful odds, even against one so gifted as 
Mr. Hammond : and the controversy, therefore, terminated with 
his first essay, and their reply. (16) Presenting some new views 
of the measure in question, which was principally sustained by 
Mr. Hammond under the ordinance power of the charter, their 
publications display an ability which entitles them to rank with 
those of Dulany and Carroll : and all of them deserve to be 
rescued from the oblivion to which they are passing, with the 
subject from which they sprang. 

The course of the colony, in relation to this protracted 
controversy, was such as we would naturally expect from 
Proceedings of a people on the eve of a revolution, in which they 

the lower house 

in 1771, in oppo- were to manifest the fullest acquaintance with the 

sition to the pro- ... _ .. . , . 

ciumation. principles of political liberty, and the most unyield- 

ing adherence to them under every circumstance of privation and 
danger. The first Assembly held after the issuing of the proclama- 
tion, was convened in October, 1771. During a session of more 
than two months, every effort was then made by the lower house 
to procure the withdrawal of the proclamation. The journals of 
that session abound with interesting discussions of the subjects 
in controversy ; and its proceedings display a high degree of 
ability. Prominent in these discussions were Messrs. Chase, 
Paca and Johnson, Charles Graham of Calvert, John Hall of 
Annapolis, and Edward Tilghman of Queen Ann's, all of whom 
were the opponents of the proclamation. Defenders it had 
none : for although there were one or two dissentients on the 
propositions relative to its advisers, those denouncing the 
measure itself, as illegal and oppressive, were unanimously 
adopted. By the resolves of that session, the right of taxation 
was asserted to be the exclusive right of the Assembly ; and the 

(16) Mr. Hammond's vindication will be found in Green's Gazette of 29th 
July, 1773 : and the joint reply of Messrs. Johnson, Paca, and Chase, in 
Gazette of 9th September, 1773. 



Chap. VI.] TO THE REVOLUTION. 395 

exercise of it by any other power pronounced unconstitutional 
and oppressive : the proclamation, and the regulation of fees in 
the land office, were declared to be arbitrary and illegal; and 
their advisers stigmatized as enemies to the peace, welfare and 
happiness of the province, and to its laws and constitution. (17) 
In the address of the lower house to the governor, which follow- 
ed up these resolves, the arguments against the legality and pro- 
priety of these measures were closed by an appeal, remarkable 
for its just conceptions of their character. " Permit us (says this 
address,) to entreat your excellency to review this unconstitu- 
tional assumption of power, and consider its pernicious conse- 
quences. Applications to the public offices, are not of choice 
but necessity. Redress cannot otherwise be had for the smallest 
or most atrocious injuries ; and as surely as that necessity does 
exist, and a binding force in the proclamation or regulation of fees 
in the land office be admitted, so certainly must the fees thereby 
established be paid to obtain redress. In the sentiments of a 
much approved and admired writer, suppose the fees imposed by 
this proclamation could be paid by the good people of this pro- 
vince with the utmost ease, and that they were the most exactly 
proportioned to the value of the officers' services; yet, even in 
such a supposed case, this proclamation ought to be regarded 
with abhorrence. For who arc a free people? Not those over 
whom government is reasonably and equitably exercised ; but 
those who live under a government so constitutionally checked 
and controlled, that proper provision is made against its being 
otherwise exercised. This act of power is founded on the de- 
struction of constitutional security. If the proclamation may 
rightfully regulate the fees, it has a right to fix any other quantum. 
If it has a right to regulate, it has a right to regulate to a million ; 
for where doee its right stop? At any given point? To attempt 
to limit the right, after granting it to exist at all, is contrary to 
justice. If it has a right to tax us, thru, whether our money 
shall continue in our own pockets, depends no longer on us, but 
on the prerogative." (18) 

(17) Journals of 18th October, 1771. 

(18) Journals of 93d November, 1771. This address was prrsrntcd to 
the house by Thomas Johnson, then a delegate from Anne Arundel ; and 
there were but three dissentients from its adoption. 



396 HISTORY FROM THE STAMP ACT [Hist. View. 

These remonstrances were unavailing. The governor adhered 
to his original views, sustaining them by the emphatic declara- 
New election ^ 0D ' tnat instead of recalling his proclamation, were 
it necessary to enforce it, he would renew it in 
stronger terms. Compromise was now hopeless; and the re- 
fractory Assembly was prorogued. It was not again convened 
before its dissolution in April, 1773 ; when a new election was 
ordered for the ensuing month. The discussion between Mr. 
Dulany and Mr. Carroll was then going on; and the proclama- 
tion became again the engrossing topic of public controversy. 
Parties were rallied ; and the elections, which were conducted 
entirely with reference to this measure, were attended with great 
excitement, and again resulted in the complete triumph of the 
opposition. (19) 

(19) The extreme and general excitement produced by this controversy, 
is manifest from the triumphs which followed the victory of the people. 
Subjoined is an account of the Celebration at Jlnnapolis, (extracted from 
Green's GazetteJ which corresponds,' in the manner of celebration, with 
the rejoicings throughout the province : 

" We are requested to insert the following account of the election : 

" Last Friday was held the election for the city, when Messrs. William 
Paca and Matthias Hammond, were chosen by a very large majority of the 
freemen, indeed, without any opposition ; much was expected, as Mr. An- 
thony Stewart had long declared himself a candidate for the city, even before 
a vacancy by the resignation of Mr. Hall, whose friends in the county in- 
sisted upon his taking a poll there. Mr. Stewart's private character justly 
recommended him to the esteem of his fellow citizens, but as he was origi- 
nally proposed to turn out Mr. Hall or Mr. Paca, who stood high in the 
esteem of the people, and as a strong suspicion was entertained of his po- 
litical principles and court connexions, Mr. Hammond was put up in oppo- 
sition to him, and on the morning of the election so great was the majority 
of votes for Mr. Hammond, that Mr. Stewart thought it prudent to decline. 

"The polls being closed, and Messrs. Paca and Hammond declared duly 
elected, it was proposed and universally approved of, to go in solemn proces- 
sion to the gallows, and to bury under it the much detested proclamation. 

" A description of the funeral obsequies may not be disagreeable to the 
public : 

"First were carried two flags with the following labels : on one, Liberty ; 
on the other, No Proclamation. Between the flags walked the two Repre- 
sentatives ; a clerk and sexton preceded the coffin, on the left the grave 
digger, carrying a spade on his shoulder — the Proclamation was cut out of 
Antilon's first paper, and deposited in the coffin, near which moved slowly 



Chap. VI.] ' TO THE REVOLUTION. 3<J7 

Cotemporancous with the proclamation controversy, was 
another, conducted with equal spirit and ability, and contri- 
buting largely to the excitements of this period. In 

Oricin of the ... it- 

Vestry Act ques- intrinsic interest, the \ estry Act question was scarce- 
ly inferior to the former; but it did not involve the 
same high constitutional doctrines; nor did its discussions lead 
to the same investigation of the principles of government, and 
of the proper securities of political rights. Yet although a mere 
technical question, it was so mingled with the political contests 
of this period, that we shall be pardoned for adverting to its 
general nature and objects. It has been seen, that the church of 
England became the established church of the colony in 1692 ; 
and that provision was then made for the established clergy, by 
the imposition of a poll tax of 40 lbs. of tobacco on the taxables 
of each parish. This tax was assessed with the public dues, 
and sent out to the sheriff for collection, for the use of the minis- 
ter. By succeeding acts, it was continued down to the act of 
1702, upon which the church establishment principally rested at 
this period. Under the inspection law of 1703, which regulated 
clergy dues as well as officers' fees, this tax was reduced, during 
its continuance, to 30 lbs. of tobacco per poll ; and that law 
being suffered to expire, in consequence of the disagreement 
between the two houses already alluded to, the more onerous 
tax of the act of 1702 was therefore revived. 

Taxes are not generally acceptable, in any form or for any pur- 
pose, to those who pay them ; but they are particularly odious, 

(in, two drummers with muffled drums, and two fifes, playing the dead march ; 
after them were drawn m\ pieces of small cannon, followed by a great con- 
course of citizens and gentlemen from the country, who attended this fune- 
ral. In this order tiny proceeded to the gallows, to which the coffin was for 
a time suspended, then cut down and baried mirier a discharge of minute 
guns. On the coffin was the following Inscription : 

" The Proclamation, the Child of Folly and Oppression, born the 26tfa 
November, 1770, departed this Life 14th of May, 1773, and Buried on the 
same day by the Freemen of AnnapolN '' 

"It is wished that ;ill similar attempts against the rights of a free people 

may meet with equal abhorrence ; and that tin- court parly, convinced by 

of the impotency of their interest, nut] never hereafter disturb 

the peace of the rily, by their vain anil feeble e.\i rtions to bear down the 

free and independent cituens." 



398 HISTORY FROM THE STAMP ACT [Hist. View. 

when levied to sustain a church establishment. There is some- 
thing in tithe systems, so essentially opposed to the nature of our 
Condition of the religion and the precepts of its divine author, that 

church establish- 
ment, the public sentiment often revolts from them, even 

when employed to sustain a worthy ministry. As if to illustrate 
their unfitness for the religion with which they have been in- 
terwoven, they have generally had the most unhappy influence 
upon the character and efficiency of the clergy : spiritual sinecures 
have been their results ; and those sustained by their emoluments 
have become the drones of the church, and sometimes its re- 
proach. There have been, of course, many honorable excep- 
tions ; but their general tendency is, unquestionably, to convert 
the clerical order into a mere temporal profession, embraced for 
its profits ; and when thus perverted, the taxation which sustains 
them, is the most odious species of oppression which can exist 
in society. Under the church establishment of Maryland, the 
patronage and advowson of the churches, or in other words, the 
right of appointing the incumbents of the parishes, was exclu- 
sively in the governor ; but pluralities were forbidden. (20) There 
were at this period forty-five parishes in the province, and the 
value of the benefices in these was continually increasing with 
the population. The revenues of the benefice in the Parish of 
All Saints, in Frederick county, were then estimated to amount 
to £1000 sterling per annum ; and the emoluments of many 
others were ample and on the increase. (21) Although their 
emoluments were not sufficient to exhibit the results of a church 
establishment in so striking a degree, as the rich endowments of 
the established clergy in the mother country ; yet there were some 
instances of that day, which we shall not detail, that exhibited as 
much of "the temporal," in the temper and conduct of some of 
the clergy of the colony, as in their revenues. Suffice it to say, 
that many of the causes which had given strength and sanctity 
to the establishment, had ceased to operate. The intolerant 
spirit which called it into existence, had for a long time sustained 
it with cheerfulness, as a weapon of offence against the non-con- 
formists ; but the period of religious alarms had now passed away. 
Catholics and Protestants were mingling together in social and 

(20 J Act of 1701-2, chap. 1st. 

(21) Eddis's Letters from Maryland, from 1769 to 1776—46. 



Chap. VI.] TO THE REVOLUTION. 399 

political harmony ; and the seeming virtues of the establishment 
were fast departing with the exclusive spirit that gave it birth. 
The incumbents, deriving their appointment from the governor, 
and their revenues from a system of taxation which operated upon 
every taxable without respect to his will, were generally classed 
and acted with the government. Thus situated, their resort to 
the heavier tax under the act of 1702, after that of 1763 was 
suffered to expire, was ungraciously received by the people ; and 
their demand of it was considered to conflict with the public 
will, as expressed in the message of the lower house, at the time 
of its refusal to re-enact the latter law. These circumstances 
aroused against the claim a general spirit of resistance; and the 
expedient of opposition was soon discovered. 

The act of 1701-2, under which the claim was preferred, was 
passed by a House of Delegates, chosen under writs of election 
Grounds and issued in the name of King William, the govern. 

conduct of the . 

controversy up- ment being then in the hands of the crown. A lew 

on the Vestry 

Act. days after the decease of this king, and without any 

fresh writs of election or summons, the Assembly was convened, 
and the act in question passed. It was now contended, that by 
the death of the king that Assembly was dissolved ; and that this 
act, being passed thereafter, was absolutely void, and not suscep- 
tible of confirmation by subsequent acts merely presuming its ex- 
istence. A controversy upon this technical question at once en- 
sued, which enlisted the abilities of some of the most distinguish- 
ed lawyers in the province ; and rarely has the discussion of any 
legal question exhibited more learning and talent. The opinions 
of Mr. Holyday and Mr. Dulany, sustaining the validity of the 
act ; and those of Mr. Paca and Mr. Chase in opposition to it, 
have heen preserved, and are remarkable for their ingenious 
views and profound investigations. (22) The controversy was 
not confined to the lawyers. To them, it was but "the keen en- 
counter of tin; '.\ its ;" to the clergy, it was a struggle for their liv- 
ings; anil tin press of the colony abounds with publications de- 

:, The opinions of Mr. Holyday and Mr. I';ir:i, and " The Sketches of 
an argument" by Mr. Dulany, will be found in 1st CAotmm 1 Collection of 
Opinions, from 303 to 343. The opinions of Mr. Chase and of Mr. PaOB are 
also preserved in their numeroui publications on this subject, in Grren'i Ga- 
ztiu of this period. 



400 HISTORY FROM THE STAMP ACT [Hist. View. 

monstrating their poverty ; and sometimes denouncing, and 
sometimes supplicating, the resisters of their claims. In their 
own body, they found an advocate of extraordinary power, in 
the person of Jonathan Boucher. Seizing upon the fact, that 
Messrs. Chase and Paca were acting as vestrymen under the 
very act which they held to be void, and considering them the 
most obnoxious opposers of the clerical claims, Mr. Boucher 
attacked them without scruple; and a war of publications en- 
sued, which was conducted through the Maryland Gazette, 
and continued for several months. (23) As controversial es- 
says, these publications would even now be admired. In in- 
tellect, Mr. Boucher was a formidable opponent; but the tem- 
per of the people was against him. The spirit of resistance ran 
so high, that in many instances the people refused to pay the tax ; 
and suits were instituted to try the right; in several of which, 
the decisions in the lower courts were against the clergy. The 
origin of this question, the operation of the measure involved in 
it, and the relative situations of those engaged in its discussion, 
in a great measure identified it with the proclamation con- 
troversy ; and thus gave to each additional virulence. For 
nearly three years, they filled the province with the most angry 
contentions, and imparted an unusual harshness of spirit 
to all the public transactions. But towards the close of the 
year 1773, some of the causes of these dissensions were re- 
moved by compromise ; and others slept, until they were 
swallowed up in the revolution. During their existence, the 
province was left without any public system to regulate the 
inspection of tobacco, its great staple; and to escape, in some 
degree, the inconveniences arising from the want of such a sys- 
tem, the inhabitants had endeavored to supply it by the regula- 
tions of private associations. The general necessities at length 
compelled the re-establishment of the public system; and thus 
one of the most oppressive results of these controversies was 
removed. (24) This was immediately followed by an act regu- 

(23) Green's Gazette of 31st December, 1772 ; 14th and 28th January, 
4th, 11th and 25th February, 4th, 18th and 25th March, 1st, 15th and 29th 
April, and 27th May, 1773. 

(24) Act of November, 1773, chap. 1st. 



Chap. VI.] TO THE REVOLUTION. 401 

lating clergy dues: (25) and there then remained no cause of 
dissension, but the determination of officers' fees by the procla- 
mation. The latter appears to have remained unadjusted until the 
revolution ; but, with the removal of the other causes of excite- 
ment, and the renewal of the contest with the mother country, 
it ceased to agitate the colony. 

The colony of Maryland, during the progress of these inter- 
nal dissensions, was removed from the causes and operation of 
the difficulties still existing and increasing between the parent 
Attempt* or the country and some of the other colonies. From the 
mny Sf^ln'trS" collisions with the military, and the oppressions of 
meoclfandthe^r tlle revenue officers, which so agitated some of the 
northern colonics, and especially Massachusetts, 
it had been entirely exempt. From the nature of the pro- 
prietary government, the crown neither enjoyed nor exercised 
any control over the internal administration of the province: 
and it was therefore free from many of the dissensions arising 
under the royal governments. The duty on tea was still adhered 
to, as the badge of English supremacy : but the colonies had 
never consented to wear it. As to this article, the restrictions 
of the association of 1769 still existed : and there is reason to 
believe, that they were generally observed with fidelity. The 
trade in it was a source of great gain to the East India company : 
and one of its principal vents being thus closed for several years, 
a large quantity of it had accumulated in the warehouses of that 
company. The selfish interests of the latter, now co-operated 
with the views of the English ministry, in the adoption of a 
■easure, which if oner- permitted a footing in the colonics, 
*T>uld soon haver restored the trade In May, l?7->, that com- 
pany was allowed, by act of parliament, upon the export of teas 
to America, a drawback of the duty : so that whilst the duty Was 
submitted to, th" price of the article was imr enhanced. The 
company immediately availed itself of this privilege; and ih< 

Ket of November, 1773, chap. 28, by which Ibi poll tax (or the cler- 
gy \vr»s fixed at .'in lbs. of tobacco, <>r four shillings in money. It was, how- 
ever, espn It 'I by tlds set, that it should not influence the determi- 
nation of the question respecting the validity of the act of 1702. Hence i' 
•rai a mere art nf compromise to k> • until 
the legal adjustment of tlir question Involred in it. 

Bl 



4m HISTORY PROM THE STAMP ACT [Hist. View'- 

cities of Charleston, Philadelphia, New York, and Boston, were 
principally selected ;is the places for the experiment. It was 
intended for a people too sagacious to be deceived. They knew 
full well, that the most successful resistance to such attempts, is 
that which meets them at the threshold : and they acted accord- 
ingly. Public meetings were convened, and resolutions adopted, 
to prevent the landing of the tea. The consignees of it became 
as obnoxious as the stamp distributors of former times ; and were 
pointed at as objects for the same summary process. In Charles- 
ton, it was landed after much opposition, but was never exposed 
to sale; and the vessels intended for Philadelphia and New York, 
were obliged to return to England with their cargoes. In Boston, 
notwithstanding the determined opposition of its people, several 
circumstances concurred to favor its landing. The consignees 
there were attached, by interest or connexions, to the ministe- 
rial party ; the governor was determined to effect its landing, and 
the military forces there stationed invested him with consider- 
able power. The consignees therefore refused to resign their 
trust; and the people, becoming apprehensive that their designs 
might be frustrated, resorted to a more effectual expedient. The 
vessels were entered by persons in disguise, the chests broken, 
and the tea thrown overboard. The whole affair was conducted 
with a strict regard to that single object, and with a degree of 
deliberation and confidence indicating full concert and the as- 
surance of general assistance. The measure is believed to 
have been concerted in the secret meetings of the patriots, and 
to have been accomplished by persons selected for the occasion. 
The English ministry so understood it: and receiving it as the 
proceeding of the people of Boston, they acted upon that per- 
suasion. 

A bill was immediately brought into parliament, stripping 

Boston Port Bin, J3 os ton of its privileges as a port of entry and dis- 
arm Us reception J 

in Maryland. charge, which was passed after a very feeble oppo- 
sition, and received the royal sanction on the 31st of March, 
1774. This was followed by the proposition of other measures 
destructive of the fundamental principles of the charter of Mas- 
sachusetts, and fraught with the most fatal consequences to her 
political liberties. By the passage of the Boston port bill, the 
blow was struck which permitted no retreat, but that of defeat 



Chap. VI] TO THE REVOLUTION. 403 

and submission. The issue was made : and the free and fearless 
people of these colonies sprang up every where in prompt con- 
cert to meet it. The intelligence of these measures was received 
"by the people of Maryland, with the same general indignation 
which attended their reception in the other colonies. They 
were read) for the crisis: and a general convention was immedi- 
ate!} proposed, as the first step of opposition. Public meet- 
ings were at once convened in all the counties; the proposition 
sanctioned; and deputies appointed to the convention. The 
proceedings of many of these county meetings have been preser- 
ved. (2(i) We cannot better describe them, than in the language 
of a cotemporary, and an officer of the English government, 
writing from Maryland at the very period of their adoption : 
"All America is in a flame: I hear strange language every day. 
The colonists are ripe for any measures that will tend to the 
preservation of what they call their natural liberty. I enclose 
you the resolves of our citizens : they have caught the general 
contagion. Expresses are flying from province to province. It 
is the universal opinion here, that the mother country cannot sup- 
port a contention with these settlements, if they abide steady to 
the letter and spirit of their association." (--2?) 

(26) The proceedings of the meetings held for Annapolis, and the coun- 
ties of Baltimore, Anne Arundel, Frederick, Harford, Charles, Kent, Queen 
Anne's, and Caroline, are preserved in Green's Gazette of 2d, 9th, 16th, 
and 30th June, 1774. 

(27) Eddis'8 "Letters from America, Historical and Descriptive, comprising oc- 
curences from 17G'J to 1777, inclusive," 158. The author of this rare work, 
was the Surveyor of the Customs at Annapolis, where he remained from 

i til the adoption of our State goternment. During all this period] 
he appears to have enjoyed, in a high degree, the confidence of governor 
Eden, to have associated freely with the people of the province generally, 
and to have been fully acquainted with their temper and Beotiments. Ili^ 
considerable acquaintance with toe institutions of Man- 
land, and the character of its government : and many of his remarks upon 
: of individuals, and ti III of measures, exliiliit 

much sagacity. Some of them are written as if with (be pen of predic- 
tion. In one of bit letters, written immediately after the elevation of Gen. 
Washington to the comrnandership of ll in army, 1" baa given a 

f his character, which embodies mosl ■•!' tin- virtues afterwards so 
prominently displayed by tbat illustrious man : and that '•ketch was drawn 
from a personal acquaintance w ith Washington, formed during the occasional 



404 HISTORY FROM THE STAMP ACT [Hist. View, 

The deputies thus appointed from the several counties, as- 
neneraiconvcn sembled in general convention at Annapolis, on the 

tion at Annap- «»£».-. , _-„ . ,. T , .... 

ois %'Za ot June, J//4. JNever was tliere assembled in 

Maryland, a body of men more distinguished, by their talents, 
their efficiency, or the purity of their purposes. Their names 
should be recorded in the memory of every citizen ; and their 
proceedings are too important a portion of our history to be 
abridged. We give them at large, as extracted from the journals 
of the convention. 

"At a meeting of the committees appointed by the several 
counties of the province of Maryland, at the city of Annapolis, the 
22d day of June, 1774, and continued by adjournment from day 
to day till the 25th day of the same month, were present, 

For St. Mary's county, Col. Abraham Barnes, Messrs. Henry 
Greenfield Sothoron, Jeremiah Jordan, for Kent county, Messrs. 
William Ringgold, Thomas Ringgold, Joseph Nicholson, Junr., 
Thomas Smith, Joseph Earle. For Queen Anne's county, Messrs. 
Turbutt Wright, Richard Tilghman Earle, So. Wright, John 
Brown, Thomas Wright. For Prince George's county, Messrs. 
Robert Tyler, Joseph Sim, Joshua Bcall, John Rogers, Addison 
Murdock, William Bowie, B. Hall, (son of Francis,) Osborn 
Sprigg. For Anne Arundel county and the city of Annapolis, 
Charles Carroll, Esq., barrister, Messrs. B. T. B. Worthington, 
Thomas Johnson, Junr., Samuel Chase, John Hall, William Paca, 
Matthias Hammond, Samuel Chew, John AVeems, Thomas Dor- 
visits of the latter to governor Eden. In another letter, written in 1769, 
in speaking of the general disposition of the colonies, he remarks : "Almost 
from the commencement of their settlements, they have occasionally com- 
bated against real, or supposed innovations : and I am persuaded, whenever 
they become populous in proportion to the extent of their territory, they 
cannot be retained as British subjects, otherwise than by inclination and interest." 
Coming from one situated as he was, his observations arc marked with much 
candor and moderation. Although deeply regretting the causes of differ- 
ence between the colonies and the mother country, he adhered to what he 
considered the obligations of his office, declined entering into the resis- 
tance of the former, was stripped of his employments, and was ultimately 
compelled to leave the province. I cannot omit this opportunity of making 
my acknowledgments to Dr. Ridout, of Annapolis, from whom this work 
was procured for me, by my friend Mr. Gideon Pearce. 



Chap. VI.] TO THE REVOLUTION. 405 

sey, Rezin Hammond. For Baltimore county and Baltimore Town, 
Capt, Charles Ridgely, Thomas Cockey Deye, Walter Tolley, Jr. 
Robert Alexander, William Lux, Samuel Parvianee, Junr., Geo. 
Risteau. For Talbot county, Messrs. Matthew Tilghman, I'.il- 
ward Lloyd, Nicholas Thomas, Robert Goldsborough, 4th. For 
Dorchester county, Messrs. Robeit Goldsborough, William En* 
nalls, Henry Steele, John Eniialls, Robert Harrison, Col. Henry 
Hooper, Mr. Mathew Brown. For Somerset county, Messrs. 
Peter Waters, John Waters, George Dashiell. For Charles coun- 
ty, Messrs. William Smallwood, Francis Ware, Josias Hawkins, 
Joseph Hanson Harrison, Daniel Jenifer, John Dent, Tho. Stone. 
For Calvert county, Messrs. John Wceins, Edward Reynolds, 
Benjamin Mackall, attorney. For Cacil county, Messrs. John 
Veazy, Junr., William Ward, Stephen Hyland. For Worcester 
county, Messrs. Peter Chaille, John Done, William Morris. For 
Frederick county, Messrs. Thomas Price, Alexander Contee Han- 
son, Baker Johnson, Andrew Scott, Philip Thomas, Thos.Sprigg 
Wootton, Henry Griffith, Evan Thomas, Richard Thomas, Rich- 
ard Brooke, Thomas Cramphin, Junr., Allen Bowie, Junr. For 
Harfi-nl county, Messrs. Richard Dallam, John Love, Thomas 
Bund. John Paca, Benedict Edward Hall, Jacob Bond. For 
Caroline county. Mr -M-rs. Thomas White, William Richardson, 
Isaac Bradley, Nathaniel Potter, Thomas Goldsborough. 

Matthew Tilghman, Esq., in the chair — John Duckett chosen 
clerk. 

It being moved from the chair, to ascertain the manner of di- 
viding upon questions, it was agreed, that on any division, each 
county have one rote, and that all questions be determined by a 
majority of counties. 

The letter and vote of the town of Boston, several letters and 
paper- from Philadelphia and Virginia, the act of parliament for 
blocking op the port and harbour of Boston, the bill depending 
in parliament subversive of thr> charter of the Uaaoachuaetto-Bny, 
andrtftul enabling tin- governor bo send supposed offenders from 
thence to another colony or England for trial, were read — and 
after mature deliberation ihrTeon, 

L Bismol Thai the said act of parliament, and bills, if pass- 
ed into acts, are cruel and oppressive invasion! of the natural 
right* of the people of Massachneetf men. and of thru- 






>M)G HISTORY FROM THE STAMP ACT [Hist. View. 

constitutional rights as English subjects; and that the said act, if 
not repealed, and the said bills, if passed into acts, will lay a 
foundation for the utter destruction of British America, and 
therefore that the town of Boston and province of Massachu- 
setts, are now suffering in the common cause of America. 

2. Resolved. That it is the duty of every colony in America to 
unite in the most speedy and effectual means to obtain a repeal 
of the said act, and also of the said bills, if passed into acts. 

3. Resolved, That it is the opinion of this committee, that if 
the colonies come into a joint resolution to stop all importations 
from, and exportations to, Great Britain, until the said act, or bills 
if passed into acts, be repealed, the same will be the most speedy 
and effectual means to obtain a repeal of the said act or acts, 
and preserve North America and her liberties. 

4. Resolved, Notwithstanding the people of this province will 
have many inconveniences and difficulties to encounter, by break- 
ing off their commercial intercourse with the mother country, 
and are deeply affected at the distress which will be thereby nc- 
cessarily brought on many of their fellow subjects in Great Bri- 
tain, yet their affection and regard to an injured and oppressed 
sister colony, their duty to themselves, their posterity, and their 
country, demand the sacrifice — and therefore, that this province 
will join in an association with the other principal and neigh- 
boring colonies, to stop all exportations to, and importations 
from, Great Britain, until the said act, and bills (if passed into 
acts,) be repealed: the non-importation and non-exportation, to 
take place on such future day, as may be agreed on by a general 
congress of deputies from the colonies — the non-export of to- 
bacco to depend and take place only on a similar agreement by 
Virginia and North Carolina, and to commence at such time as 
be agreed on, by the deputies for this province and the said co- 
lonies of Virginia and North Carolina. 

5. Resolved, That the deputies from this province are authoriz- 
ed to agree to any restrictions upon exports to the West Indies, 
which may be deemed necessary by a majority of the colonies at 
the general congress. 

6. Resolved, That the deputies from this province are authoriz- 
ed, in case the majority of the colonies should think the importa- 
tion of particular articles from Great Britain to be indispensably 



Chap. VI.] TO Till: REVOL1 TIOIN .11)7 

necessary tor their respective colonics, to admit and provide foi 
this province, such articles as our circumstances shall necessarily 
require. 

7. Resolved, That it is the opinion of this committer, that the 
merchants and others, venders of goods and merchandizes within 
tlii- province, ought not to take advantage of the above resolve 
for non-importation, but that they ought to sell their goods and 
merchandizes that they now have, or may hereafter import, at 
the same rates they have hern accustomed to do within one year 
last past; and that if any person shall sell any goods which he 
now has, or hereafter may have, or may import, on any other 
terms than above expressed, no inhabitant of this province 
ought, at any time thereafter, to deal with any such person, his 
agent, manager, factor, or storekeeper, for any commodity whal- 
e\ er. 

8. Resolved, unanimously, That a subscription be opened in the 
several counties of this province, for an immediate collection for 
the relief of the distressed inhabitants of Boston, now cruelly 
deprived of the means of procuring subsistence for themselves 
and families, by the operation of the said act for blocking up 
their harbour, and that the same be collected by the committees 
of the respective counties, and shipped by them in such provi- 
sions as may be thought most useful. 

5). Resolved, unanimously, That this committee embrace this 

!ic opportunity, to testify their gratitude and most cordial 

thanks to the patrons and friends of liberty in Great Britain, for 

their patriotic efforts to prevent the present calamity of America. 

In. Resolved, That Matthew Tilghman, Thomas Johnson, Junr., 
Robert OoldsboTough, William Paea, and Samuel Chose, Esqrs., 

or any two or more of them, be deputies for this proi nice, to at- 
tend a general cot ; deputies from the colonies, at such 
time and place as may be agreed on, to effect one general plan 
of conduct, operating on the commercial connexion of the co- 
lonies with the mother colonies, for the relief of Boston and the 
presentation of American liberty; and thai the deputies of tin. 
province immediate!] corn-pond with Virginia and Pennsylva- 
nia, and through them with the other colonic-, to obtain a meet- 
ing of the genera] congress, a ml to communicate, as the opinion 
of tins committee, that the twentieth day ul' September next 



^- 



408 HISTORY FROM THE STAMP ACT [Hist. View, 

will be the most convenient time for a meeting, which time and 
place, to prevent delay, they arc directed to propose. 

11. Resolved, unanimously, That this province will break off all 
trade and dealings with that colony, province, or town, whicli 
shall decline or refuse to come into the general plan which may 
be adopted by the colonies. 

12. Resolved, That copies of these resolutions be transmitted! 
to the Committees of Correspondence for the several colonies,, 
and be also published in the Maryland Gazette." 

The restrictions of the association of 1769, had never been< 
formally rescinded, as to the article of tea, on which the duty- 
was continued ; and if as to this also, they had been relaxed by 
Tea burning at tne practice of the colony after the abandonment of 
Annapolis. the ot } ier restrictions, they were now revived in a$ 

their vigor, without waiting for the sanction of her expected 
Congress. As to this commodity, which was familiarly called 
" the detestable weed," the former provisions for prohibiting its 
importation, were instantly renewed. Many of the proceedings of 
the county committees of Maryland, occurring during the interval 
between the assemblage of its convention and the adoption, of a 
new association by the continental congress, manifest the same 
vigilant and vigorous opposition to its introduction, which charac- 
terised the course of the colony immediately after the first adoption 
of the association. One of these instances of opposition is too 
remarkable to be passed unnoticed. The tea burning at Boston 
has acquired renown, as an act of unexampled daring at that day 
in the defence of American liberties : but the tea burning at 
Annapolis, which occurred in the ensuing fall, far surpasses it iiv 
the apparent deliberation and utter carelessness of concealment 
attending the bold measures which led to its accomplishment. 
On the 14th of October, 1774, the brig Peggy Stewart arrived at 
Annapolis, having onboard, as a small part of its cargo, seventeen 
packages of tea, consigned to Thomas Williams and Co. mer- 
chants of that place. Although it appears that some of the con- 
signees were not scrupulous about infringements of the associa- 
tion, they would not venture to incur the public indignation, by 
landing or paying the duties upon the tea, without consulting the- 
inclinations of some of the committee of Annapolis: but, in the 
<ineantimc, the vessel was entered, and the duties paid by Mr. 



Chap. VI. j TO THE REVOLLTION. 409 

Anthony Stewart, a part owner of the vessel. The people, alrea- 
dy indignant at the very attempt to import it, were incensed be- 
yond control by the payment of the duties. A meeting of the 
citizens of Annapolis was immediately convened, by some of the 
committee of Anne Arundel, at which it was determined that 
the tea should not be landed; and a committee was accordingly 
appointed, to prevent its landing-, and to superintend the dis- 
charge of the remaining cargo. The ultimate disposition of the 
case was reserved for the consideration of a general county 
meeting, to be held in a few days thereafter. Apprehensive of 
the result, Mr. Stewart endeavored to anticipate the purposes of 
that meeting, by assenting, under the advice of others, to the 
destruction of the tea, as the only effectual mode of appeasing 
public indignation. A meeting of the citizens of Annapolis 
was now called, in advance of the proposed county meeting, to 
which the proposal to land and burn the tea was submitted, as 
sanctioned by the assent of Mr. Stewart and of the consignees ; 
but even this would not suffice. Some more exemplary punish- 
ment was deemed necessary; and the majority determined to re- 
fer the proposition to the expected county meeting. This meet- 
ing was held on the 19th of October, and was very fully attend- 
ed. The subject was then thoroughly investigated by a commit- 
tee, who recommended the destruction of the tea, and required 
both of Mr. Stewart and the consignees, a written apology of a 
most humiliating character. Still the public mind was not satis- 
fied. The destruction of the vessel itself was now proposed ; and 
although the proposition was negatived by the meeting, it was 
yet sustained by many, who avowed their determination to col- 
lect a force for its accomplishment. In this emergency, Mr. 
Stewart, acting under the advice of Mr. Carroll of Carrollton, 
proposed to destroy the vessel with his own hands. The pro- 
position was, of course, gladly accepted ; and the people repaired 
in crowds to the water to Witness the atonement. Mr. Stewart, 
accompanied by the consignees, went aboard the vessel, which 
was run aground at Windmill Point; and there, in the presence 

of the assembled multitude, with the lire will of a fatalist, he sot 
fire to his own vessel, with the tea on board, and expiated his 
58 



410 HISTORY FROM THE STAMP ACT [Hist. View. 

offence by their destruction. (28) This instance, in its manifesta- 
tion of public feeling, is of a character with those which occur- 
red in other parts of the province ; and they evince the preva- 
lence, throughout it, of the most determined and resistless oppo- 
sition to the measures of the English government. 

The Continental Congress, to which all the colonies were look- 
ing with the most anxious expectation, assembled at Philadel- 
Proceedinga of phia, on the 5th of September, 1774. The charac- 

tlic lirst Conti- 1 . , ... 

nentai congress, ter of that Congress, and the results ot its delibera- 
tions, belong peculiarly to the national history, on which they 
stand in proud relief, as the memorials of an Assembly, evincing 
, more dignity of sentiment and elevation of purpose, than ever 
did a Roman senate. Its manifesto of colonial liberties, and its 
addresses to the king, to the people of Great Britain, and to the 
colonists themselves, display every where a spirit, as far removed 
from faction as from submission, as gentle and open to the prof- 
fers of honorable reconciliation as it was steeled against the me- 
naces of arbitrary power, as ardently desirous for the restoration 
of harmony in consistence with public rights, as it was resolved 
against peace with their abandonment as its condition. The ex- 
pedient of opposition resorted to by that congress, was that already 
indicated by public sentiment, and recommended by its success- 
ful issue in the previous contests of the colonies. A Non-Im- 
portation Association was adopted, to take effect in the ensuing 
December, and to exclude the importation of all articles whatso- 
ever, imported either directly from Great Britain and Ireland, or 
indirectly by their importation from other places into which they 
were originally imported from these kingdoms. It prohibited 
also, the importation of East India teas from any quarter of 
the world ; and to obviate the effects of any importations alrea- 
dy made, it embraced an agreement not to purchase or consume, 
after that period, any teas imported on account of the East India 
company, or on which the duty had been paid, nor, after the ensu- 
ing March, any East India tea imported under any circumstances. 
Restrictions upon exportation of as extensive a character, were also 
embodied in this association : but these were postponed in their 

(28) Green's Gazette of 20th and 27th October, 1774. Eddis's Letter?, 
170 to 184. Life of Carroli, in Biography of Signers, Stc. 



Chap. VI.] TO THE REVOLUTION. 41 J 

operation until September, 1775; after which period, if the difficul- 
ties with the mother country were not adjusted, they prohibited the 
exportation of any article whatsoever, to Great Britain, Ireland, 
or the West Indies, except rice to Europe. Such were the pro- 
minent features of this association, which contemplated, in the 
last resort, an entire cessation of commerce with the mother 
country and its principal possessions. Of those who established 
it, all hoped for its ultimate efficacy ; and many of the most sa- 
gacious rested upon that hope with entire confidence: yet there 
were those amongst them, who even now believed, that the con- 
troversy must ultimately be decided by the strong hand. (-29) It 
was submitted to a people, expecting its coming, and ready for 
its adoption ; and it instantly received their almost unanimous 
approbation. 

Under the power reserved by the Maryland Convention to its 
deputies in congress, it was again convened, by their call, on 

Association re- the 21st November, 1771; when the proceedings 
commended by , , ° 

it, adopted by of the Contjress were unanimously approved; and 

On Maryland . ,,,,,, n . , 

Convention. it was declared to be the duty of every inhabitant of 
the province "to observe strictly and inviolably, and to carry 
into full execution," the recommended association. If more had 
been wanting to give efficacy to this declared duty, it was found 
in the eloquent appeals with which it was enforced by the con- 
\< nt ion at its session in the ensuing month. "As our opposi- 
tion (say its resolves,) to the settled plan of the British adminis- 
tration to enslave America, will be strengthened by an union of 
all ranks of men in this province, we do most earnestly recom- 
mend that all former differences about religion or politics, and 
all private animosities and quarrels of every kind, from hence- 
forth cease, and be for ever buried in oblivion; and we entreat, 
we conjure every man, by his duty to his Cod, his country, and 
his posterity, cordially to unite- in defence of our common rights 
and liberties." 

Thus began the. War of the Revolution, with a system of re- 
strictions, inconvenient and oppressive to the colonists them- 
r.encrai efficacy selves, although of their own adoption, vet resting 

of Ujh AmocI* , i J 

llon - for its basis and securities upon public sentiment 

(29) Of the latter class were Patrick Henry and John Adams— soo 1st Pit- 
Win's U. States, 301. 



413 HISTORY FROM THE STAMP ACT (Hist. Yiew. 

It could not have had a moro efficient support. Tyrant9 may 
humble and oppress, laws may awe ; but public sentiment erects its 
throne in the heart. There installed, it sways with a moral power 
and energy, which bring tyrants to its footstool, and give to law 
itself its efficacy. Human institutions are its handmaids: but 
when they seek to drive it from its throne, they learn, in the sad 
experience of their feebleness, that the very power they have 
wielded was but its derivative. It keeps the lofty place, where 
men may stand and say with him of old, " Give me but this, and I 
will move the world." In these widely extended colonies, 
with institutions so various and pursuits so diversified, public 
sentiment had now moulded them into one, and ruled su- 
preme over all. Never was there a dominion more perfect and 
resistless. Before it had fallen prostrate, all the habits of colo- 
nial dependence; and the allegiance to England's monarch, 
established by law and inculcated by education through ages of 
uninterrupted loyalty, was exchanged for devotion to American 
liberty. It was surrounded by none of the harsh penalties of 
law, nor of the pomp and circumstance of judicial tribunals, to 
strike terror to the souls of the offender. It did but expose him 
to public censure, as the enemy of his country's liberties: yet 
in this simple denunciation, there was enough to appal the 
stoutest heart. As if he were touched with leprosy, all shrank 
from communion with "the denounced;" and even friends desert- 
ed. If secure from popular vengeance, he had no refuge from 
the withering scorn and contempt of his countrymen, but in hu- 
miliating submission, or ignominious flight from his home. With 
such sanctions to sustain such a cause, who wonders, that the 
history of the colonies, at this period, abounds with illustrations 
of public virtue, for which the world has no parallel? 

An association for such objects, thus recommended, and thus 
sustained, could not fail to command general observance; and 

Mode in which in Maryland, the most judicious measures were im- 

ctiforcod In Ma- . . 

ryiuiui. mediately adopted to insure its discreet application. 

After it had received the sanction of the convention, meetings 
wctc assembled in all the counties, and committees were se- 
lected, amongst whom were distributed the powers and duties 
proper to give it universal respect and uniformity of operation. 
Some of these were called Committees of Inspection or Ob»er- 



Chap. VI.] TO THE REVOLUTION. 413 

ration, to whom it belonged to inquire into and report tlio facts 
of every case of alleged or suspected breach of the association; 
and others, Committees of Correspondence, who were empow- 
ered to convene county meetings, and were charged with the 
duty of keeping up a correspondence with the other counties. 
These regulations Mere attended with the happiest results. Pub- 
lic feeling, which may sometimes run to riot under the impulse 
of the best causes, was constantly checked and purified by its 
operation through these channels; and its dispensations were 
attended with order and harmony. In this mode the association 
was sustained in this province until July, 1775; and the relations 
with the other colonies were kept up, during this interval, by a 
Provincial Committee of Correspondence, and by the continued 
appointment of delegates to the General Congress. (30) In the 
latter, the most implicit confidence was reposed. It has been 
seen that the instructions to the delegates appointed by the first 
convention, contemplated only a system of opposition operating 
upon the commercial connexion of the colonies with the mother 
country ; but those given by the ensuing conventions of Decem- 
ber, 1771, and April, 177"), lefi them free from all restrictions. 
The former clothed the delegates with general authority " to agree 
to all such measures as Congress might deem necessary and effec- 
tual to obtain a redress of American grievances:'' which was 
accompanied, in those of April, with the express declaration of 
the confidence of the convention "in the wisdom and prudence 
of the delegates, that they would not proceed to the last ex- 

(30) Messrs. Tilghman, Johnson, Ooldsborough, Paca, and Chase, the 
delegates to Congress appointed by the first convention in June, 1774, ap- 
pear to have been charged with conducting the correspondence with other 
colonics. But ut the session of the Convention in December following, the 
latter duty was confided to a distinct committee, Styled " The Provincial 
Committee of Correspondence." The persons then appointed to constitute 
this new con, mitt.-. u< ,<■, Matthew Tilghman, (who seems to have been thr 
patriarch, of the colony, at this erentfuJ period,) John Hall, Samuel ("base, 
Thomas Johnson, Junr., Charles Carroll of Carrollton, Charles Carroll, bar* 

rist< r. and \\ ilham Paca. Tin- delegate! to CoDg r e M were appointed for 

one congress oext lacceeding the convention at which they were appointed. 

The gentlemen appointed by the first Convention were continued ns surli 
during this period, and to them were added in December, 1774, John Hall 
and Thomas Mane. 



414 HISTORY FROM THE STAMP ACT [Hist. View. 

trcmity, unless in their judgments they should be convinced that 
such a measure was indispensably necessary for the safety of 
their common liberties and privileges." The instructions were 
accompanied with the solemn pledge, that the province would 
carry into execution, to the utmost of its power, all measures re- 
commended by thp General Congress. 

Yet even at this early period, when the nation was resting, 
with hopes of success, upon this mode of resistance, we disco- 
rreparations for ver > m tne proceedings of the convention, that they 
hostilities. were already contemplating the probable necessity 

of one more serious, and were preparing the public mind, and 
organizing the power of the province, in anticipation of its com- 
ing. In one of their resolves, at December session, 1774, they 
announced the determination "that if the late act of parliament 
relative to the Massachusetts-Bay, shall be attempted to be car- 
ried into execution by force in that colony; or if the assumed 
power of parliament to tax the colonies shall be attempted to be 
carried into execution by force in that or any other colony, in 
in such case this province would support such colony to the 
utmost of their power." The preparatives to meet this engage- 
ment were not neglected. The planters generally were request- 
ed to devote themselves to the culture of flax, hemp, and cotton, 
and to the preservation of their flocks for the manufacture of 
woollens. All persons between the ages of 15 and 60 were re- 
commended to form themselves into companies, to equip them- 
selves with arms, and to engage in military exercises. It was 
also enjoined upon the committees of the several counties, to 
raise, by subscription, or in some other voluntary mode, a speci- 
fied sum of money for their respective counties, to be expended 
in the purchase of arms and ammunition, which were to be pre- 
served under the direction of the committees. From the pro- 
ceedings in the counties, which have been preserved, these in- 
junctions appear to have been obeyed with promptness and ala- 
crity. Military associations were everywhere formed; arms and 
ammunition were collected; liberty was the watchword; and citi- 
zen soldiers were arming for the defence. All gave dreadful note 
of preparation for the crisis which soon arrived. (31) 

(31) Eddis, writing from Maryland in March, 1775, has given us a lively 
picture of the transactions of this period. " From one extremity of this 



Chap. VI.] TO THE REVOLUTION. 415 

In the remonstrances of the colonics, and the preparations 

which ensued, any but an infatuated ministry might have learned 

Adoption of a the lesson of forbearance. The calm, settled, stern 

Provisional go- . 

vtrnment. determination, which pervaded this nation, even 

careless observation might have distinguished, from the faction 
of the few, or the temporary excitement of the many. When 
such a spirit rouses to resistance, menaces no longer awe, and 
even victory does not bring submission. Yet were the English 
ministry either unaware of the existence of this spirit, or inca- 
pable of appreciating its character. The efforts of Chatham, of 
Burke, and of Fuller, were all unavailing to arrest its mad career 
in the course of colonial oppression: propositions for reconcilia- 
tion, which offered honorable retreat from its measures, were 
rejected with disdain: injury was added to injury; and invective 
and insult were the arguments addressed to a free and gallant 
people. The proceedings of the English parliament, during tho 
winter of 17?l-'75, dispelled all hopes of speedy and peaceable 
reconciliation. It was n<>w manifest, that force must be the ar- 
biter: yet the colonists shrank not from this dread appeal. In 
the battle of Lexington, the first blow was struck; and, on the 
instant, started up in arms the American nation for the defence 
of its liberties. Under the direction of its Congress, its army 
was organized, Washington was their leader, and hostilities be- 

continent to the other, every appearance indicates approaching hostilities. The 
busy voice of preparation echoes through every settlement; and those who are 
not zealously infected with the general frenzy, are considered as enemies to 
the cause of liberty; and, without regard to any peculiarity of situation, 
arc branded with opprobrious appellations, and pointed out as victims to 
public resentment. Very considerable subscriptions have been made in every 
quarter fox the relief of the IJostonians ; Large Bums nav< likewise been col- 
lected for the purchase of arms and ammunition ; and persons of all de- 
nominations are required to associate under military regulations, on pain of 
the severest censure." 

In another of July, ITT."., referring morn particularly to the condition of 
thi-> province, he remarks — "The inhabitants <.f ti.is province are incorporat- 
ed under military regulations, and apply th< greater pari of their til 
the different br ime. in Annapolis, there are two complete 

companies ; in B BB ; and in everj district of this province, the 

dry under :u ms : almost every bal is de< 
rd with .1 cockade ; and the churlish drum and fife axe the only nm 
mcs." 



416 HISTORY FROM THE STAMP ACT [Hi.l. View. 

gan. The period of probation had passed away ; and with it 
now departed all the remaining energies of the old forms of go- 
vernment. Tolerated in their helpless inefficiency, whilst there 
was yet hope of reconciliation through pacific measures, they 
had retained the form of power without its substance. They were 
now sinecures, occupying powers which were wanted by the 
colonies for their own defence ; and the people were prepared to 
shake them off as incumbrances. In some of the colonics, the 
inhabitants cast themselves upon, and were directed by, the ad- 
vice of Congress, in the adoption of new governments : that of 
Maryland was re-organized by its people upon their own respon- 
sibility. At the convention of July, 1775, a temporary form of 
government was established in this province, which endured un- 
til the adoption of the present state government; as the precur- 
sor of which, it still claims our remembrance. 

The objects and obligations of that government were fully dis- 
closed in the following Articles of Association, which formed its 
basis : 

<: The long premeditated, and now avowed design of the Bri- 
tish government, to raise a revenue from the property of the co- 
Synopsis of the lonists without their consent, on the gift, grant, and 

Provisional Go- r r\ t> • l 

verument. disposition of the commons of Great .Britain ; the 

arbitrary, and vindictive statutes, passed under color of punish- 
ino- a riot, to subdue by military force, and by famine, the Massa- 
chusetts-Bay; the unlimited power assumed by parliament to al- 
ter the charter of that province, and the constitution of all the 
colonies, thereby destroying the essential securities of the lives, 
liberties, and properties of the colonists ; the commencement of 
hostilities by the ministerial forces, and the cruel prosecution of 
the war against the people of the Massachusetts-Bay, followed by 
General Gage's proclamation, declaring almost the whole of the 
inhabitants of the united colonies, by name or description, rebels 
and traitors, are sufficient causes to arm a free people in defence 
of their liberty, and to justify resistance, no longer dictated by 
prudence merely, but by necessity, and leave no alternative but 
base submission or manly opposition to uncontrollable tyranny. 
The Congress chose the latter, and for the express purpose of 
securing and defending the united colonies, and preserving them 
in safety, against all attempts to carry the above mentioned acts 



Chap. VI. 1 TO THE REVOLUTION. 417 

into execution by force of arms, resolved,, that the said colonies 
be immediately put into a state of defence, and now supports, at 
the joint expense, an army to restrain the further violence, and 
repel the future attacks, of a disappointed and exasperated 
enemy. 

We, therefore, inhabitants of the province of Maryland, firm- 
Iv persuaded that it is necessary and justifiable to repel force by 
force, do approve of the opposition by arms to the British troops, 
employed to enforce obedience to the late acts and statutes of 
the British parliament, for raising a revenue in America, and al- 
tering and changing the charter and constitution of the Massa- 
chusetts-Bay, and for destroying the essentia] securities for the 
lives, liberties, and properties of the subjects in the united colo- 
nies. And we do unite and associate, as one band, and firmly 
and solemnly engage and pledge ourselves to each other, and to 
America, that we will, to the utmost of our power, promote and 
support the present opposition, carrying on, as well by arms, as 
by the continental association restraining our commerce. 

And as in those times of public danger, and until a reconcilia- 
tion with Great Britain on constitutional principles is effected, 
. (an event, we most ardently Wish, may soon take place,) the ener- 
gy of government may be greatly impaired, so that even zeal un- 
restrained may be productive of anarchy and confusion ; we do 
in like manner unite, associate, and solemnly engage in main- 
tenance of good order, and the public peace, to support the civil 
power in the due execution of the laws, so far as may be con- 
sistent with the present plan of opposition; and to defend with 
our utmost power all persons from every species of outrage to 
themselves or iheir property, and to prevent any punishment 
from being infiirte.l on any offenders, other than such ri^ shall be 
adjudged by the civil magistrate, tie- continental congress, our 
convention, council of safety, or committees of observation." 

'I'm procure the general adoption ol '. iation, copies of 

it were to be transmitted to the counties, and to be borne about 
to the inhabitants for subscription bj iallj appointed 

in each county, for that purpose, by its committee of observa- 
tion. The subscribed copies were fhen to be n turned to the 
M 



4 IS HISTORY FROM THE STAMP ACT [Hist. View. 

convention ; and with them, the names of the non-associa- 
tors. (32) 

The supreme power under this government was vested in the 
Provincial Convention. As the unrestrained depositary of the 
public will, it controlled every other authority in the province; 
and its resolves were law. It was not confined by the ordinary 
distinctions of power/as legislative, executive, or judicial; and 
its only limits were its discretion. This convention consisted of 
five delegates from each county, who were to be elected annual- 
ly by the persons entitled to vote for delegates under the old go- 
vernment: a majority of the votes was necessary to election; 
and the elections were to be held under the superintendance of 
the delegates of the county for the time being. There was no 
representation of cities; and the county representation was pe- 
culiar in requiring a majority of the delegates for any county, to 
constitute a quorum, and to empower them to give any vote 
binding upon their county. Vacancies in the delegation of any 
county were to be filled by the appointment of its committee of 
observation, the votes of two-thirds of the members being neces- 
sary to a choice. 

The chief executive power of the province was confided to a 
Committee of Safety, elected by the convention, and consisting 
of sixteen members, of whom eight were to be chosen from each 
shore. The appointment of this committee endured only from 
convention to convention ; and at each new election, one half 
of the members from each shore, to be selected by ballot, were 
to retire from office. This committee, although in entire subor- 
dination to the convention, was clothed with high powers and 
responsibilities, particularly in relation to the forces and revenues 
of the new government. It appointed ail field officers, and 
granted all military commissions ; it directed all the operations 
of the military, when in service : and in the recess of the con- 
vention, it had power to call them into service, the militia within 
any part of the province, and the minutemen, either within tho 

(32) The writer has before him one cf these copies, containing the origi- 
nal return of the Associators of Back Creek Hundred, in Cecil county, by 
Thomas Frisby Henderson. It has the signatures of one hundred and 
twenty-one associators ; and reports but one dissentient. 



Chap. TI.] TO THE REVOLUTION. 419 

province or in any of the counties adjoining. Its orders to any 
amount for the bills of credit issued under the resolves of the 
convention, were imperative upon the treasurers; and it had also 
a cheek upon the latter, in its right to require of them statements 
of their receipts and expenditures. As the supreme execu- 
tive power, it could call the convention, during its recess, at 
any period before the day to which it stood adjourned. Tho 
members from each shore, were also the conservators of the 
•iation and of the liberties of the province on their respec- 
tive shores; and as such, in all cases where persons were sent 
to them by the committee of observation of any county, under 
charge of having violated the association, or of having done any 
act " tcnJing to disunite t lie inhabitants of the province in their 
opposition, or to destroy the liberties of America," they were 
empowered to take cognizance of the offence charged, and either 
to imprison the offender until the next convention, or to banish 
him from the province. (33) 

(33) This organization of the Committee of Safety •was of short dura- 
tion. A rc-organization of it took place on the 17th of January, 177C, when 
it was made to consist of seven memhers, elected by the convention, of whom 
four were to be residents of the Western, and three of the Eastern shore ; 
and any four were a quorum. The peculiar shore meetings and powers were 
also dispensed with ; and the members were allowed a stated compensation 
for their services. Another change was effected on the 25th of May, 1776, 
under which this committee consisted of nine members, elected in the same 
manner, of whom five were to be residents of the Western, and four of the 
Eastern shore. 

The members of the Committee of Safely, under the first organization of 
July, 1""."'. -.•' re, Matthew Tilghman, John Beale Bordley, Robert Goldsbo- 
rough, Jam H I < ' I. loyd, Thomas Smith, and 

Henry Hooper, for thr Eastern shore; and Daniel of St. Thomas Jenifer, 

I rlea Carroll, (barrister,) Thomas 
it Alexander, and Charles Carrol] of. Carrollton, 
fortlr ■ i ibers under the Becond organization of Janua- 

ry, I" I of St. Thomas Jenifer, Charles Carroll, (barrister,) 

John Hall, ' I Hues Tilgh* 

man, 'i B. H 1 tern short. The mem- 

bers under the I ■ . | me as in January, 

with the addition of George Plater for the Western shore, and William 
Hayward for the Eastnn *hore. At June section, 177l>, when the con- 
<n adopted measures for the establishment of a permanent form of 



420 HISTORY FROM THE STAMP ACT [Hist. View- 

The revenues of (his government consisted in the bills of credit 
issued under the resolves of the convention, and the money rais- 
ed by voluntary contributions. The portions of it appropriated 
for, or contributed on either shore, were placed under the care 
of a treasurer for that shore appointed by the convention, who 
was required to pay them out upon the orders of the convention 
or of the council of safety, and also upon the draughts of the 
branch of the council for his shore, so long as the separate ex- 
istence and powers of the branches were preserved. They were 
also under the check both of the convention and of the council 
of safety, to either of which, or to any committee of the former, 
empowered to investigate the condition of the revenue, they 
were bound to submit statements of their receipts and expendi- 
tures. (34) 

The county authorities were entrusted to Committees of Obser- 
vation, elected annually in each county at a stated period, by the 
persons entitled to vote for delegates to the convention. The 
elections were held under the inspection of the delegates of the 
county for the time being; and the committees consisted of a fix- 
ed number for each county. To them belonged exclusively the 
care and enforcement of the association in their respective coun- 
ties ; in discharging which duty, however, they were entirely un- 

government, to keep up the committee until the new government was 
established, the gentlemen elected members of this committee in the pre- 
ceding May, were all re-elected, except Mr. Hayward, who declined, and in 
whose place Joseph Nicholson was elected. From December, 1775, the 
committee had the power of filling up vacancies in their own body, occur- 
ring during the' recess of the convention. 

Their powers were considerably enlarged by the convention in January, 
177G. They were then clothed with the power to arrest, and, after hearing, 
to imprison until the next convention, "all persons guilty of any breach of 
the association, or of any offences tending to create disaffection or to destroy 
the liberties of America," in addition to their former power of imprisoning 
or banishing such offenders when sent to them by any committee of observa- 
tion ; and besides their former powers over the military, they could pardon 
offenders sentenced to death by a court martial. Some other and minor pow- 
ers were conferred, which it is not necessary to notice. 

(34) The treasurers appointed at the establishment of this government 
were, Thomas Harwood, Junr., for the Western Shore ; and William Hind- 
man, for the Eastern Shore. 



Chap. VI. j TO THE REVOLUTION. 4>l 

der the control of the convention, and were bound to carry into 
effect either it- resolves or those of C It was their duty 

to appoint officers to bear about the association to the people of 
their counties for general subscription, and also agents to receive 
voluntary contributions for the public aid. They had cognizance 
of all breaches of the association in their counties; and had 
power to inflict upon offenders against it, the censures directed 
by the resolves of congress or of the convention; and upon pro- 
bable proof that any person had been guilty "of any high and 
dangerous offence, tending to disunite the inhabitants in their 
opposition to the English government, or to destroy the liberties 
of America," they were required to cause such person to be ar- 
rested, and to be sent forthwith, with the charge against him, to 
the council of safety, or the branch of it for their shore whilst 
the separate branch powers existed. They were also entrusted 
with the conduct of the public correspondence for their coun- 
ties, and were required to appoint for that purpose, out of their 
own body, and for their own term of service, a committee of cor- 
respondence, consisting of five members, of whom any two were 
a quorum. They had also a partial control over judicial pro- 
ceedings. It was deemed important by the convention so to re- 
strain these proceedings, that their progress might not interrupt 
the public harmony, ot interfere with the measures necessary for 
the general defence ; and it was therefore ordered by that body, at 
the formation of this government, that all pending suits, which 
could not be amicably adjusted, should be continued until its fur- 
ther order; and that no new suit should be instituted, except in 
certain specified cases, without the permission of the committee 
of observation tor the county. This permission was to be granted 
only in certain other cases : and for the exercise of this power, 
the committei rvation were required to appoint special 

committees, which ucn- styled committees to license suits. 

■ in this summary view of the prominent features of this 
Protnnonai Government it is apparent, that its original regulations 

Modification OCiatOrs were of the mosl tolerant 

t |oreni- 

BMot character. They delegated no power to compel 

submission to the new government. The nami - of the recu* 

sant^ were returned to the convention, to which alone il belong* 
I d to take such orders in their respective, rase* &fl the public safe- 



422 HISTORY FROM THE STAMP ACT [Hist. View* 

ty might demand. The same liberal course was observed, in its 
original requisitions for the public defence. All able bodied free- 
men between the ages of sixteen and fifty, (except clergy- 
men, the household of ihe governor, and persons conscien- 
tiously scrupulous,) were required to enroll themselves in the 
militia under its authority: but cases of refusal, were followed by 
no specific penalties, and were reserved for the exclusive 
consideration of the convention or the council of safety, to 
which they were reported. The necessities of the times, and 
the increasing bitterness of the contest, soon compelled a resort 
to harsher measures: yet even these offered alternatives, which 
justice itself would sanction, and which exhibited a moderation 
almost without a parallel in the histories of revolutions. These 
more rigorous measures were adopted by the convention in Jan- 
uary, 1776. All non-associators were then indulged until the 
10th of the ensuing April, to give in their adhesion to the asso- 
ciation. If this were declined, they were at liberty to depart 
the province with any or all of their property; and they were en- 
titled to a passport from the committee of observation of their 
county, authorizing them to go beyond sea. If they departed, 
leaving any of their property behind, it was subject to a propor- 
tionate share of the public expense incurred in the defence of 
the province. If they elected to remain, and yet refused to be- 
come associators, the committees of observation for their coun- 
ties were empowered to disarm them : and also, in their discre- 
tion, to require of them bond with security, in such penalties 
as the committees might deem proper, conditioned that the re- 
cusants would demean themselves peaceably in the struggle with 
the mother country, would hold no correspondence with any 
person in office under the crown or in arms against the colo- 
nies, nor communicate intelligence, in any mode, of the coun- 
cils or preparations of congress, or of any of the colonial 
authorities. The regulations as to the militia were also re- 
newed; and the time for enrolling enlarged until the first of the 
ensuing March; after which period, all persons subject to, and 
declining enrollment, (except paupers,) were liable to the impo- 
sition of a tax not exceeding £10 per year, to be reckoned from 
the antecedent September, to be assessed by the committees of 
observation, and to be collected by officers appointed by such 



Chap. TI.] TO THE REVOLUTION. 423 

committees, and having power to levy it by distress, if voluntary 
payment was rcfu- 

Such we tneral diameter and objects of this temporary 

government, under which the pe Maryland continued to 

Us character and dwell, until the adoption of our State constitution. 
resuiu. rp a || ulK [,, r i, s authority, its dispensations were 

mild and just; and the proceedings of that period ascribe to 
them the utmost impartiality. There arc instances to show, that 
neither the sanctity of the pulpit, nor the confidence and privi- 
leges thrown around the high office of delegate, could shield the 
offender from the censures awaiting all who sinned against the 
liberties of the province. Yet it is manifest, from ihe distribu- 
tion of its powers, and its vague definition of offences, that it 
was a government susceptible of much abuse and oppression. 
The self-constituted authority of the Long Parliament itself, was 
not more arbitrary and unrestrained in its nature, than that of 
the provincial convention. The committee of safety, with its 
power to arrest and banish or imprison for offences so indefinite- 
ly di the widest range to discretion, and with 
the permitted and required secrecy of its councils, was an en- 
gine which malignity or corrupt ambition, once obtaining its 
control, might have prostituted to the vilest purposes. The 
committees in the counties, notwithstanding their entire subor- 
dination to the provincial authorities, were yet clothed with dis- 
cretionary powers, which, in their oppressive capacity, were 
scarcely inferior to those of a Turkish A.ga. Even the " incirism" 
of revolutionary France, that term of terror, from whose widely 
extending grasp, neither a .-, nor sex, nor virtue, nor talents, nor 
patriotism, could rescue those to whom it was applied by the 
ailing humor or d of iIm' day, did not afford more 
facilities to tin: mischievous and op] of power, 
than the vague denunciation oi who, in the 
opinion of the committees, had committed any acts "tendin 
any i the libertii 
America." With such a definition as its guide, authority had 
no limit but discretion; and if thus bounded, its mandates were 
characterized by j tnoder; tion, they attest at once the 
purity of tho*e who administered it, and the general prevalence 
of rational liberty amongst the people by whom it WSS establish- 



421 HISTORY FROM THE STAMP ACT [Hist. View. 

ed and sustained. That such was the character of the provin- 
cial government, as administered by the convention, is apparent, 
not only from its transactions, but also from the testimony of co- 
temporaries, given under circumstances entitling it to our fullest 
confidence. We learn it from the instance and the admissions 
of an English officer, himself a resident of the province during 
the continuance of this government, and a recusant of its au- 
thority; (35) and from the more just and lively tribute to its cha- 
racter, by one of the most distinguished and patriotic citizens of 
our infant state. "Such an administration, the immediate off- 
spring of necessity, might have been reasonably expected to be 
subversive of that liberty which it was intended to secure. But 
in the course of more than two years, during which it was cheer- 
fully submitted to by all, except the advocates for British usur- 
pation, although many occasions occurred in which an intempe- 
rate zeal transported men beyond the just bounds of moderation, 
not a single person fell a victim to the oppression of this irregu- 
lar government. The truth is, that during the whole memorable 
interval, between the fall of the old and the institution of the 
new form of government, there appeared to exist amongst us 
such a fund of public virtue as has scarcely a parallel in the an- 
nals of the world." (36) 

In the erection of their provisional governments, the views of 
the colonists generally were still bounded by the hopes of an 
Objects of this honorable and permanent reconciliation with Eng- 

govornment. j anj j At fte pcri()d when ^ Qf Marylan( j was 

established, although the dread appeal to arms was already made, 
and fierce, relentless hostility seemed to lie in prospect, the pub- 
lic mind had not yet been brought to contemplate independence 
as its probable result. The establishment of independence was 
not the purpose for which their resistance began; nor was it yet 
the issue they expected or desired. Never were a people ani- 
mated by a holier cause, or truer to the principles they professed. 
Until the attempts of parliament to break down the barriers of 

(35) See the Letters of Mr. Eddis, the officer alluded to. 

(36) Remarks of the late Chancellor Hanson, introductory to the Journals 
of the Convention, embodied in his publication of the Laws of Maryland, from 
17(53 to 1784. 



Chap. VI.] TO THE INVOLUTION. .]£3 

their o> trnments against tyranny, they had enjoyed 

under them security and happiness. 'Whilst the right of internal 
legislation wa ively exercised by assemblies of their nun 

choice, uncontrolled oppress ion could never reach them in the 
administration of their internal interests. They were therefore 
wedded to their charier governments, by the remembered bless- 

- of the past: and upon them they were content to rest, as 
the earnest of liberty and happiness tor the future. In no colo- 
ny, was this ardent attachment of its people to their internal go- 
vernment, more prevalent and more justly founded than in Ma- 
ryland. The reader, who has gone with us in the general sur- 
vev of the proprietary government and the history of its admin- 
istration, has perceived, that in the protection of public liberty 
and private rights, and in all the securities which these derive 
from xnment, it gave peculiar fiecdom and privilege to 

the subjeel ; and that it was generally so administered as to pro- 
mote the interests and secure the attachment of the colony. 
That attachment was of the purest character. It was cherished 
for their free institutions, and not for the personal interests of 

e who administered them. J [enry Harford, the then proprie- 
tary, had no hold upon the affections of the colony. His lather, 
Frederick Lord Baltimore, who succeeded to the prOprietaryship 
in 1751, and continued to enjoy it until his death in 1771, had 
left no claim.- upon the gratitude or respect of the people. He 
had never visited the province ; and his administration was not 
endeared bj any of tho of kind and anxious re- 

gard for iti that of his predecessor. 

He had, it Efered or directed the powers of 

ernment under wielded against the public 

wishes; and he had employed (he revenues of the province to 
minister I id, who i I m and un- 

der h and a stranger; and 

consequently witho rial claim to sustain his go- 

vernment. 

a of the revolution is now " the 

an 1 in the retrospect, the transition of 

i n dependence to independence,, 

iU but a i | the apprehensions and 

difficulties by which n was attended. \ el sv< n al 
64 



426 HISTORY FROM THE STAMP ACT [Hist. View. 

this early period of the struggle, whilst all the ardor of the first 
impulse was upon the colonists, and their yet undiminished re- 
sources and energies inspired confidence, the issue of their 
appeal to arms was uncertain. Prepared, as they were, for 
any issue but submission, the immediate declaration of indepen- 
dence was still a measure of the boldest policy. With it, all 
hopes of reconciliation would vanish; and a sanguinary and 
protracted warfare was in prospect, which left no alternatives, 
but victory, or ignominious submission. If successful, they 
were to be cast into a new state of existence, as distinct 
and independent communities, of which the weaker pro- 
vinces might at last become the prey of the stronger. If van- 
quished, with the rights for which they were contending, would 
be lost even their acknowledged liberties. These were consi- 
derations which operated for some time in all the colonies, and 
with peculiar force in Maryland, to stay the resort to a measure 
so hazardous, whilst there were yet hopes of honorable adjust- 
ment. The course of this province upon the adoption of this 
measure has not been generally understood ; and it has some- 
times been described, as if it had been a shrinking from the 
common cause. Yet the proceedings of her people, and her 
convention, in connexion with it, impart to their conduct and 
motives a very different character. That convention was com- 
posed of as firm and uncompromising patriots, as ever directed 
the councils of any country; and their memory requires no vin- 
dication, but the history of their transactions. 

At the close of the year 1775, the proposition to declare the 
independence of the colonies began to engross the public atten- 
Objects of the tion. Before that period, the declarations of the 

colonies in their . ... 

repeated dis- colonies present a striking contrast with their acts. 

claimers of this . 

design. The former breathed nothing but peace and the 

most ardent desires for reconciliation: the latter exhibited no- 
thing but the preparations for war. Every new measure of hos- 
tility was accompanied by new professions of allegiance. The 
renewal of these professions was rendered necessary, by the con- 
stant misrepresentation of their purposes. From the origin of 
the struggle, it had been the effort of the English ministry to fix 
upon them the character of rebels, whose aim was independence, 
and whose grievances were pretexts. Apart from such a design, 



Chap. VI.] TO THE REVOLUTION. 427 

the claims of the colonics came with great power to the hearts 
and minds of the English people. They asserted a right, fami- 
liar to that people, identified with their political liberties, and in 
times past established by their forefathers with the strong hand. 
What was consecrated as the patriotism of their ancestors, could 
not be licentious rebellion in their brethren : what was cherished 
as the bulwark of their own liberties, could not be unnecessary 
for the protection of the colonies. The English ministry were 
aware, that such considerations, if left to their full operation, 
could not long fail to array against them even the public senti- 
ment of the English people. But if the establishment of inde- 
pendence was believed to be the first purpose of colonial re- 
nee, thej knew also that the pride and interests of that peo- 
ple would at once rally them in support of the dominion of 
England. Hence their studious efforts to establish this purpose; 
and hence the anxious disclaimers of it by the colonies. At the 
opening of the parliament of 1775, this design was at length 
ascribed to them in the speech from the throne, which gave but 
faint hopes of compromise ; and many of the American people 
u now to consider a total .reparation as their only security. 
V< t the great body of the truest and firmest patriots of that period, 
still believed that the minds of the English people and king were 
abused by the ministry, and deceived by the representations of 
the corrupt minions of power amongsl themselves ; and one last 
I was made to rescue them from that influence. About 
the close of the year 177"), and in the beginning of the year 
177<>. the purpose ofindepi ndence was again disclaimed by most 
of the colonies in declarations of a most solemn character. 

In .Maryland, it had hitherto been 1 1 1 * - course of its convention 
to confide unrestrained power to n- delegates in the general 

Instructions of C< aildal each a 1 ipoi : i! Hid it . lo renew tllC 

to the e of the colony to abide by their acts. At its 

13th Jan. ma. session in January, I77<», restrictions were, for the 
first time, imposed upon the del< 01 I declaration 

again made of the purposes of its opposition. The ob- 
ject of these proceedings is fully illustrated by the cotemporary 
transaction! of the other colonies, and the language of the « on- 
vention. They wi re the acts of men determined to l"- in the 
right, and to evince to the world, that be the issue what it 



428 HISTORY FROM THE STAMP ACT [Hist. View. 

might, their motives were pure, and their measures the last 
honorable resort of freemen. "The experience (say these in- 
structions,) which we and our ancestors have had of the mild- 
ness and equity of the English constitution, under which we 
have grown up and enjoyed a state of felicity not exceeded by 
any people we know of, until the grounds of the present contro- 
versy were laid by the ministry and parliament of Great Britain, 
has most strongly endeared to us that form of government, from 
whence these blessings have been derived, and makes us ardent- 
ly wish for a reconciliation with the mother country upon terms 
that may ensure to these colonies an equal and permanent free- 
dom. To this constitution we are attached, not merely by habit, 
but by principle, being in our judgments persuaded, it is of all 
known systems best calculated to secure the liberty of the sub- 
ject, and to guard against despotism on the one hand and licen- 
tiousness on the other. Impressed with these sentiments, wc 
warmly recommend to you to keep in your view the avowed end 
and purpose for which these colonies originally associated, the 
redress of American grievances and securing the rights of the 
colonists." The delegates were therefore instructed to promote 
reconciliation as far as possible, "taking care, at the same time, 
to secure the colonies against the exercise of the right assumed 
by parliament, to tax them, and to alter their constitutions and 
internal polity without their consent." They were also prohibit- 
ed from assenting to a declaration of in dependence, or to any 
alliance with any foreign power, or any confederation of the co- 
lonies, which would necessarily lead to separation ; unless in their 
judgments, or of that of any four of them, or of a majority, if all 
present, it should be deemed absolutely necessary for the pre- 
servation of the liberties of the united colonics : and if any such 
measures were adopted by a majority of the colonies against. 
their assent, they were instructed to submit them immediately to 
the convention, without whose sanction they should not be bind- 
ing upon the colony. "Desirous as we are of peace, (say they, 
in conclusion,) we nevertheless instruct you to join with the 
other colonics in such military operations as may be judged pro- 
per and necessary for tlio common defence, until such peace enn 
be happily obtained." 



Chap. VI.] TO THE REVOLUTION. 429 

The declaration, which followed these instructions, was made 
for the avowed purpose "of manifesting to the king, the parlia- 
Peciaration of in,,|i '' the people of Great Britain, and to the whole 
world, the rectitude and purity of their intentions in 
their opposition to the measures of the English ministry and 
parliament." Explicitly declaring, that they considered their 
union with the mother country, upon terms that would ensure 
to them a permanent freedom, as their highest felicity, they con- 
cluded iheir vindication with the following striking expressions: 
"Descended from Britons, entitled to the privileges of English- 
men, and inheriting the spirit of their ancestors, they have seen, 
with the most extreme anxiety, the attempts of parliament to de- 
prive them of their privileges, hy raising a revenue upon them, 
and assuming a power to alter the charters, constitutions, and 
internal polity of the colonies without their consent. The en- 
deavors of the British ministry to carry these attempts into exe- 
cution by military force, have been their only motive for taking 
up arms; and to defend themselves against these endeavors, is 
the only use they mean to make of them. Entitled to freedom, 
they are determined to maintain it at the hazard of their lives and 
forturj 

We will not detain the reader, by detailing the transactions of 
the English parliament durfn ■ the session of l775-'76. They 
of Una are already recorded in our national histories; and 
it will suffice to say of them, that they left the colo- 
nies hut little hope of relief from the justice of 
England. Their petitions were spurned, their Assemblies de- 
clared rebellious, their persons and property made objects ol 
plunder, and odhounds of war, foreign mercenaries, 

wit' l>'in them to pillage and desolate their 

country. Tli was dow full. Obedience was 

bondage: the last ties of interest and affection were sundered ; 
and the American people were ready for Independence! In thi 
colon ' rally, Inn in Maryland, a declaratiot 

independ* nee had i pt to close the » 1 * > < » r against re- 

conciliation. The government then i d in tins province, 

ndependt n\ of England in i and operations, as 

tint under which I e, and was endowed with tin- fullest 

powen to ' • it continuance until the liberties of the colonic* 



430 HISTORY FROM THE STAMP ACT [Hist. View, 

were restored. Happily for this province, it had not yet been 
the seat of war; and so general was the opposition of its inhabi- 
tants to the measures of the English government, that disaffec- 
tion to their provisional authorities, though it might lurk amongst 
them, dared not appear. Thus freed from the causes of excite- 
ment, which operated in other colonics, subject to the scourge of 
an internal warfare, and dwelling under continual apprehensions 
of treachery ; its people were comparatively calm and moderate, 
yet not less resolute in resistance. They were ready to keep 
pace with the movements of the sister colonies; and hence about 
the period when the proposition to declare independence was 
beginning to receive sanction, the usual oaths of allegiance to 
the English government were dispensed with by the Maryland 
convention. (37) The very forms of allegiance were thus sus- 
pended : but its total abolition was still considered by the 
convention a measure of doubtful policy. Such a step would 
for ever separate them from an internal government, under 
which they had hitherto lived, free, secure, and happy: and 
by destroying the provisional authorities, which could not 
long survive their temporary objects, it would force upon them 
the adoption of some new and untried system of government. It 
was a measure not contemplated at the time of their election; 
and upon which the sense of their constituents was not yet fully 
ascertained. But what was more apprehended than all else, it 
placed them in a new state of existence, the operation of which, 
upon the separate and independent condition of the province, it 
was impossible to foresee. The jealousy of the people of Mary- 
land, at all attempts to interweave their internal government with 
that of the other colonies, is apparent at every period of their 
colonial history: and it existed, even at this moment, to beget 
apprehensions. These were now increased by a measure of the 
continental congress. On the 10th of May, 1776, that body re- 
commended to the colonies generally, a dispensation with the 
oaths of allegiance to the crown, the total suppression of au- 
thority under the English government, and the establishment of 
permanent constitutions. This proceeding was at once regard- 
ed by the Maryland convention, as an attempt at internal regu- 

(3T) Journals of Convention of 15th May, 177G. 



Chap. VI.] TO THE REVOLUTION. 431 

lation; and as such, was met by remonstrances. The resolves 
embodying these, which were adopted on the 21sl of May, be- 
tray much of this jealousy. They represented the full efficiency 

of the convention to call into action all the resources of 
the province, and its entire willingness to redeem its pledges 

to the common cause, and to enter into any further engagement 
'•which might be necessary to preserve the constitutional rights 
of America:" but they asserted, as preliminary to these, the ex- 
clusive right of the people of Maryland to regulate its internal 
government and police. As if to render this right more mani- 
fest, in re-appointing their delegates to congress, they again sub- 
jected them to the instructions of the preceding January, the 
nature of which has already been exhibited. 

The public feeeling was now ripe for the Declaration of In- 
its concurrence dependence; and the restriction of the delegates, 

in tlie proposi- ... 

tioa. by these instructions, was deeply regretted by the 

great body of the people, and by the delegates themselves. The 
latter, by their communion with the representatives of the other 
colonies, were more fully acquainted with the general sentiment, 
ami more sensible of the advantages of such a declaration at this 
crisis, livery effort was therefore immediately made by them, to 
procure forth' the delegation of unrestricted power upon 

the question of independence : and through their instrumentality, 
public meetings were convened in the several counties, the 
sense of which was every where found to be in favor of an im- 
mediate declaration. This was brought to bear upon the con- 
vention in all it> force; and thai bodj at once yielded to the 
public will. By it- resolves on the 28th of June, the restrictions 
were removed: and the d< ere empowered to "concur 

with a majority of the colonies, in declaring them free and inde- 
pendent States, and in forming such further compacts, ami mak- 
such foreign allianc* iit he deemed necessary." Yet 

jealousy of internal interference was still appa- 
rent: i"r the pledge "i' tin- colon] to ratifj the measures so 
adopted wasexpn jsIj dependent upon the condition, "That the 
sole ami exclusive right of regulating Its internal police ami 
rernmi at i ■ ed t'< its people." 



432 HISTORY FROM THE STAMP ACT [Hist. View. 

A still more decisive measure was adopted on the Glh of July, 
Maryland Decla: 1776. On that day, without waiting for the expect- 

ration of hide- 

pendence. ed declaration of Congress, and before its final rati- 

fication could have been known, the independence of this pro- 
vince was formally proclaimed by its own convention in the fol- 
lowing Declaration, which, for the dignity of its sentiments, and 
the force and fervor of its appeals, will not shrink from a con- 
trast even with the far-famed Declaration of American Indepen- 
dence. 
"A Declaration of the Delegates of Maryland." 

"To be exempt from parliamentary taxation, and to regulate 
their internal government and polity, the people of this colony 
have ever considered as their inherent and unalienable right. 
Without the former, they can have no property; without the lat- 
ter, they can have no security for their lives or liberties. 

"The parliament of Great Britain has, of late, claimed an un- 
controlable right of binding these colonies in all cases whatso- 
ever. To force an unconditional submission to this claim, the 
legislative and executive powers of that state have invariably 
pursued, for these ten years past, a studied system of oppression, 
by passing many impolitic, severe, and cruel acts, for raising a 
revenue from the colonists; by depriving them, in many cases, 
of the trial by jury ; by altering the chartered constitution of one 
colony, and the entire stoppage of the trade of its capital ; by 
cutting off all intercourse between the colonies ; by restraining 
them from fishing on their own coasts; by extending the limits 
of, and erecting an arbitrary government in the province of Que- 
bec; by confiscating the property of the colonists taken on the 
seas, and compelling the crews of their vessels, under the pain 
of death, to act against their native country and dearest friends; 
by declaring all seizures, detention, or destruction of the per- 
sons, or property of the colonists, to be legal and just. A war 
unjustly commenced, hath been prosecuted^ against the United 
Colonies, with cruelty, outrageous violence, and perfidy; slaves, 
savages, and foreign mercenaries, have been meanly hired to rob 
a people of their property, liberties, and lives; a people guilty 
of no other crime than deeming the last of no estimation with- 
out the secure enjoyment of the former. Their humble and du- 
tiful petitions for peace, liberty, and safety, have been rejected 



Chap. VI.] TO THE REVOLUTION. 433 

with scorn. Secure of, and relying on foreign aid, not on his 
national forces, the unrelenting monarch of Britain hath at 
length avowed, by his answer to the City of London, his deter- 
mined and inexorable resolution of reducing these colonies to 
abject slavery. 

" Compelled by dire necessity, either to surrender our proper- 
ties, liberties, and lives, into the hands of a British king and par- 
liament, or to use such means as will most probably secure to us 
and our posterity those invaluable blessings : 

" We, the Delegates of Maryland, in convention assembled, do 
declare, that the king of Great Britain has violated his compact 
with this people, and that they owe no allegiance to him. We 
have, therefore, thought it just and nfecessary, to empower our 
deputies in Congress, to join with a majority of the United Co- 
lonies, in declaring them free and independent States, in framing 
such further confederation between theip, in making foreign al- 
liances, and in adopting such other measures as shall be judged 
necessary for the preservation of their liberties; provided the 
sole and exclusive right of regulating tin internal polity and go- 
vernment of this colony be reserved to tpe people thereof. We 
have also thought proper to call a newjeonvention, for the pur- 
pose of establishing a government in this colony. No ambitious 
virus, no desire of independence, induced the people of Mary- 
land to form an union with the other colonies. To procure an 
exemption from parliamentary taxation, and to continue to the 
laturea of these colonies the sole and exclusive right of re- 
gulating their internal polity, was our original and only motive. 
To maintain inviolate our liberties, and to transmit them unim- 
paired to posterity, was our duty and first wish ; our next, to 
continue connected with, and dependent on Great Britain. For 
the truth of to appeal to that Almighty Being, 

who i- emphatically stiled the Bearcher of hearts; and from 
whose omniscience nothing is concealed. Belying on his Di- 
vine prot< ction and assistance, and trusting to the justice of our 
cause, we exhort and conjure every virtuous citizen t<» join cor- 
dially in defence of our common rights, and in maintenance of 
the freedom of this and ber sister colon! 

Thus fell, in this colon no more, the dominion of 

'and, and with it the government of the proprietary: and 

from their ruins, like the fabled creature of beauty from the 

•V) 



431 HISTORY FROM THE STAMP ACT [Hist. View. 

ashes of the Phenix, arose a free and independent State. (38) 
The transformation was easily accomplished. The provisional 
government had in fact already suppressed the exercise of all au- 
thority by the crown or the proprietary; and under its commands, 
Mr. Eden, the last proprietary governor of Maryland, had de- 
parted the province. (39) The establishment of a permanent 
form of government had also been resolved upon, and the ne- 
cessary measures for it were already adopted. It had been 
determined in convention, on the 3d of July, that a new con- 
vention should be called for that purpose ; and its organiza- 

("38) The effects of this revolution upon the private rights of the proprie- 
tary, and the adjustment afterwards made with Mr. Harford, will appear 
hereafter in our remarks upon the Land Office. 

(39) Robert Eden, who succeeded Mr. Sharpe, assumed the government 
of Maryland in June, 17G9. Unfortunately for him, his administration 
fell upon a period fruitful in causes of excitement, and abounding in the 
most angry dissensions, through which it was scarcely possible for him, 
under any circumstances, to have passed in peace ; and which the policy 
of his measures tended but little to assuage. His unadvised proclamation, 
although ascribed to the counsels of others, was, of itself, sufficient to have 
rendered him odious to the great body of the people. Yet in the midst of 
all the commotions of the province, and even whilst his own measures were 
exciting general indignation, he seems to have been respected, nay, even 
beloved. Easy of access, courteous to all, and fascinating by his accom- 
plishments, he still retained his hold upon the affections even of his oppo- 
nents, who, for the qualities of his heart, and the graces of his manner, 
were willing to forgive the personal errors of his government. Hence he 
was permitted to remain in the province, secure aud privileged, even after 
the establishment of the provisional government ; and by its express excep- 
tions, he and his household were exempt from its authority. Continuing to 
enjoy this immunity, under the sanction of the convention, he resided in 
Maryland until June, 177G, when his departure was required by the dis- 
covery of a correspondence, between him and Lord George Germaine of the 
English ministry. In this correspondence, governor Eden was assured, that 
his previous conduct was approved by his majesty, and he was directed to 
hold himself in readiness to assist the operations of an armament, in- 
tended against the southern colonics. There was more to excite jealousy, 
in the existence of such a correspondence, and the manner of its trans- 
mission, than in the character of the communication. It was transmitted 
through the obnoxious Earl of Dunmorc, the late royal governor of Vir- 
ginia, and intercepted in the bay by the commander of an armed vessel 
in the provincial service, who discovered it on the person of a citizen 
of Maryland, returning from a visit to Dunmore's fleet, made under the 



Chap. VI.] TO THE REVOLUTION. 435 

tion was then fully prescribed. Four representatives were allot- 
ted to each county: except in Frederick, where four were allot- 
ted to each of its three districts corresponding to the three coun- 
ties of Montgomery, Washington, and Frederick, as afterwards 
established by the new convention; and for Annapolis and Bal- 
timore, two for each. The old qualifications for voters and dele- 
gates were retained, to which were added others, excluding per- 
sons in the regular service of the colony or of the United States, 
or any of them, and those who had been published as enemies to 
the public liberties, and had not been restored to public favor. 

sanction of the Council of Safety. The correspondence was immedi- 
ately forwarded, by the person intercepting it, to General Lee, by whom it 
was sent to the Maryland convention, with an argent recommendation to 
seize the person and papers of the governor. The convention not being in 
session at the time of its arrival, the council of safety disregarded the request 
of General Lee, audj was content to receive the parol of the governor, that 
he would not leave the province until the meeting of that body. Not- 
withstanding the recommendations and remonstrances of the sister colonies, 
and the attempt to seize him by an armed force from Baltimore, the council 
of safety preserved inviolate his person and property until the assemblage of 
the convention. By this body, the course of the council of safety was fully 
approved ; a severe censure was passed upon the gentleman heading the at- 
tempt from Baltimore ; and the governor was for some tima permitted to 
remain, under its protection, in defiance of censures and remonstrances from 
abroad. Its proceedings, in connexion with his case, are still interesting, as 
manifesting towards the colonies, the same jealousy of foreign interference, 
and the same resolute support of its exclusive right to direct the internal con- 
cerns of the province, which had been apparent in its opposition to the Eng- 
lish government. It was, however, soon evident that his longer continuance in 
the colony, might bring his official obligations into conflict with its interests : 
and there was still a strong and increasing disposition amongst the people, 
which was fomented by "/ ; /' of Baltimore, to lay violent hand9 

upon him even against the injunctions of the convention. — lie was therefore 
y the convention on the 24th of May, to have the province : and 
in accordance with thi u< Bed in u nna manifesting the 

inl fur him. Mi. from innapolis in the ship 

i 1th of June, 1776. — "Till the momenl of the governor's embar- 

kation on the 23d, (say s Mr . 1 i ison to apprehend a 

chango of disposition to hi- prejudice. Some few were even <■ I amorous for 
his detention. But the council of safety, who acted under a resolve of . the 
, ratified i . • of that body ; and after they 

had taken an affectionate 1< ,:..•. iqojBr 

ducted to the barge with every mark of respect due to the elevated station he 



436 HISTORY FROM THE STAMP ACT [Hist. View, 

The place, time, and manner of election, were designated, and 
a period assigned for the meeting of the new deputies. The ex- 
isting convention was then, by itself, declared to be dissolved on 
the ensuing first of August: but the council of safety was still 
continued in existence, as the executive of the province, to 
await the regulations of the intended Assembly. The new con- 
vention was accordingly constituted ; and its members assem- 
bled at Annapolis on the 14th of August, 1776. The first step 
towards the objects of its assemblage, was to confide the prepa- 
ration of the new form of government and a charter of rights, to 
a special committee, from which they were reported on the 10th 
of September. (40) Copies of them were immediately published, 
and transmitted to each county ; and the convention was ad- 
journed for several days, so that its members might ascertain 

had so worthily filled." — He escaped in good season ; for the occurrences of 
that day, following his embarkation, effected an entire revolution in public 
feeling. Some deserters were received on board the Fowcy on the evening of 
that day, whom captain Montague refused to surrender : and upon application 
to governor Eden, he professed his inability to effect their restitution. This pro- 
ceeding was a gross breach of confidence, as the vessel had been permitted to 
come up under the flag of truce, and as such, was highly resented. All com- 
munication with the vessel was instantly stopped : the governor's property, 
which was not yet embarked, was detained ; and the ship departed without it 
on the evening of the 24th — After the close of the war, governor Eden re- 
turned to Maryland, as I am informed, to seek the restitution of his property ; 
and here died. 

The above history of the causes and manner of his departure, are collected 
from the journals of the convention of May and June, 177G, Green's Gazette, 
Eddis's Letters 278 to 31C, and Gerardin's Continuation of Burke's History of 
Virginia, 155. 

(40) The original members of this committee, (who were elected by ballot) 
were Messrs. Matthew Tilghman, (President of the convention) Carroll, bar- 
rister, Paca, Carroll of Carrollton, Plater, Samuel Chase, and Robert Golds- 
borough. Messrs. Chase, and Carroll, barrister, having resigned their seals 
as members of the convention, in consequence of certain instructions from 
their constituents which they could not approve, their places were supplied, 
by the appointment of Thomas Johnson, and Robert Hooe. — Mr. Chase was 
re-elected, but did not take his seat until the day on which the committee 
reported. 

The form of government and bill of rights so reported, were but slightly 
altered in their passage through the convention. We know not by whom 



Chap. VI.] TO THE REVOLUTION. 437 

the sense of the people upon the adoption of the proposed go- 
vernment. It re-assembled oil the 2d of October: and, after the 
fullest discussion, "a Constitution," and "'Declaration of Rights*' 

were finally adopted, the former on the 8th, and the latter on the 
3d of November. (41) The first Assembly of Maryland, under 
the new constitution, assembled on the 5th of February, 17??; 
and the new government was at length organized on the 13th 
and 14th of that month, by the election of Thomas Johnson as 
its first governor, and Charles Carroll, Senr., Josiah Polk, John 
Rogers, Edward Lloyd, and John Contee, as its first executive 
council. 

Thus was introduced and established the State Government of 
Maryland: which it is now our purpose to trace through all its 
modifications, from its establishment to the present day, and to 
exhibit in connexion the public institutions of the State which 
have sprung from its operation. From this period, the history of 
Maryland assumes a double aspect, because of its distinct yet 
not inconsistent capacities, as an independent State, and as a 
member of the United States under the old confederation and 
the present union. Looking to its former capacity alone, the 
history of its state institutions comprises all that is interesting in 
its internal administration; and to these our attention will be 
particularly directed. The consideration of its external rela- 
tions belongs peculiarly to the history of the nation; but when 
we shall have completed the survey of its internal government, 

they were drafted ; nor whether they were the production of any particular 
member or members of this committee. 

(41) The reader will find, in the appendix to the second volume of this 
work, tin: nanus of :tll the members of this convention. 

In closing the history of the convention-government of Maryland, we shall 
surprise the reader by the fact, that the State has not in her archives, u 
very recently obtained, a single memorial of its existence or operations. The 
■ dings of all the provincial conventions were published ; and there is, or 
- since, a complete collection of them in the possession of Mr. 
Jonas Green, of Annapolis. — There ]-, not, I believe, another i otire collection 
of these in the State, if th ae in the possession of the honorable 

Gabriel Duvall, of the Supremo Court, who was for some time the clerk of 
the convention, afterwards occupied an important and responsible office 
under the provisional t, and was at all times distinguished by hi* 

zeal and efficiency in the cause of the revolution. 



438 HISTORY FROM THE STAMP ACT, &c. [Hist. View. 

we shall endeavor to present a general view of its past and pre- 
sent relations to the federal government, exhibiting its rights and 
obligations under it, its relative rank and influence as a mem- 
ber of it, and its general course upon the national administra- 
tion. 



CHAPTER VII. 



DISTRIBUTION OF THE LEGISLATIVE POWER UNDER THE STATE 
GOVERNMENT OF MARYLAND. 

The legislative power of the State government of Maryland is 
vested in two distinct and co-ordinate legislative bodies, which 
are respectively styled " The Senate" and " House of Delegates." 
The legislature, thus composed, is styled by our constitution, 
" The General Assembly of Maryland." (!) No control over its 
legislation is confided to the executive. The governor, who is 
the supreme executive officer of the State, does not participate 
in the enactment of laws. The constitution does indeed re- 
quire, that all bills passed by the General Assembly, when en- 
grossed, shall be presented by the Speaker of the House of De- 
legates, in the Senate Chamber, to the governor, who shall there 
sign them, and affix thereto the Great Seal of the State, in the 
presence of the members of both houses. (2) Yet this is a mere 
ministerial power, which he cannot withhold, and in the exercise 
of which he is not permitted to consider the propriety of the acts 
submitted. He has no veto upon them; and his signature is not 
necessary to give them efficacy, but is a mere authentication of 
them as the acts of the Assembly. 

In this respect, our Stat" internment is materially different, 
not only from the proprietary government which preceded it, and 
that of the mother country, but also from most of the forms of 
state government prevailing around us : yel however anomalous 
this feature of it may first appear, it will be found, on closer ex- 
amination, to be m perfect consistence with the origin ami na- 
ture of our supreme executive power. When the executive is, 

(1) Constitution, article 1st. 

(2) Constitution, articl* fiO. 



440 DISTRIBUTION OF THE [Hist- View 

as to its existence, totally independent of the legislative power ; 
when it springs from a different source, or from the same source 
by a different channel ; or when it is clothed with personal rights, 
privileges, and dignities, which, although the consequence of of- 
ficial rank, are yet distinct from its purely official powers, there is 
some propriety in the veto. By such a check only, can its^sepa- 
rate and independent existence, and the rights and dignities 
flowing from that existence, be effectually protected. In Eng- 
land, the king is no longer considered to held his office by divine 
tenure. His power and dignity rest for their acknowledged 
foundation upon the will of the nation ; and the doctrine, which 
so bases them, is rendered familiar by the acts which have been 
passed to regulate the succession to the throne. Yet the form 
of the English government, as an hereditary monarchy, contem- 
plates the personal exemption of the king from the legislative 
power; and the existence of independent rights, as incident to his 
high office and rank, which can be withdrawn only by the return 
of its people to natural rights. His veto upon the acts of parlia- 
ment, is therefore regarded as essential to his continuance in that 
state of privileged power and dignified independence, in which 
it is the design of the English constitution to sustain him. The 
proprietary veto upon the acts of our colonial Assembly rested 
upon similar reasons. The proprietary derived his right to the 
soil of the province, and his powers of government over it, from 
his charter. Those who migrated to his colony, voluntarily sub- 
mitted themselves to a dominion derived from the - crown ; and 
the right of legislation through Assemblies of the freemen, was 
given as ancillary to that dominion. If the charter had given the 
legislative power exclusively to the colonists, it would have 
placed the powers of the proprietary at their feet, and would 
thus have conflicted with its own nature and objects. 

In the republican forms of government around us, which confer 
the executive veto, we discover reasons for its existence not ap- 
plying to our constitution. Under most, if not all of those govern- 
ments, the supreme executive springs directly from the people ; 
and having thus a common origin with the legislature, it is clothed 
with this power ; not for the preservation of its own privileges, 
but merely that it may operate as a salutary check upon legisla- 
tion generally. Its existence rests upon the same reasons which 



Chap. VII.] THE LEGISLATIVE POWER. 441 

have recommended the division of a legislature into two branches: 
and being established for the general benefit, and not for the pro- 
tection of the executive rights, as in England, its control generally 
ceases under circumstances warranting the inference, that it con- 
flict with the well ascertained public will. Hence we find that 
under the governments alluded to, if the assent of the executive is 
refused to an Act. it may still be passed into a Law, if a certain 
number of the members of both branches of the legislature will 
concur in its passage. Under the constitution of the United 
States, if the President refuses to sanction an Act, he returns it, 
with his objections, to the house in which it originated. His ob- 
jections are then entered at large upon the journals of that house : 
and if, upon reconsideration, with these objections before them, 
two-thirds of the members of each house of Congress still vote for 
it, it becomes a law without hi- assent. The provisions of the 
state constitutions, under which the veto exists, although in some 
instances varying from this mode, are yet analogous in their gen- 
eral character : and they all illustrate, that the power is intended 
. a- a qualified check. 
Such a check, for such purposes, incident to the office of gov- 
ernor of Maryland, would be a most useless investment of power. 
He is elected by the very legislature upon which it would operate. 
He is elected annually: and his ie-eligibility renders him virtu- 
ally the dependant of those who elected him, not merely because 
they have called him to the office, but also because, in the ordina- 
rv course of events, many of them will pass upon his re-election. 
To deposit such a check with ;m officer so created and so 
situated, would be little better than to commit the legislature to us 
own guardianship. It may also he remarked, that there is less ne- 
under our constitution than under those 
of t: It will hereafter appear, thai in the organiza- 

tion of our Senate, the design to create a check upon the popular 
branch of the Assembly, is carried further than in the constitu- 
tion >.t any other legislative body in the Tinted Slate.-: and that 

it w ould he \ isionar; t" look for further checks, in the grant of an 
executn e 

Tie' legislate e power of the state being therefore confided ex- 
clusively to the two hou i -"i Assembly, it leads us to consider — 
the organization ami characteristic features of the Senate and the 



442 DISTRIBUTION, &c. [Hist. View. 

House of Delegates — the nature, extent, and exercise of the powers 
of the General Assembly — the nature, extent, and exercise of the 
peculiar rights and privileges of each house of Assembly — and 
the character and extent of the rights, privileges, and disabilities, 
of the members of the General Assembly, or of either house. — 
These will be severally considered in the following chapters. 



CHAPTER VIIL 



ORGANIZATION OF THE HOUSE OF DELEGATES. 

In viewing the constitution of the House of Delegates, we 
*hall consider, (1) The qualifications of voters — (2) The qualifi- 
cations for the office of delegate — (3) The manner of election — 
(■I) The peculiarities incident to these elections in the cities of 
Annapolis and Baltimore — (5) The manner of filling vacancies 
— (6) The distribution of the right of representation — (7) The 
tenure and compensation of the office of delegate. 

(1) Qualifications of voters. 

For many years after the colonization of Maryland, its people 
appear to have enjoyed an elective franchise of the most exten- 
sive kind. Under the charter, the legislative power was to be 
exercised by the proprietary, "by and with the advice, assent, 
and approbation of the freemen, or of the delegates or deputies," 
the right being reserved to him of selecting the mode in which 
they should be assembled. Collecting the import of the word 
" freemen," as here used, from its legal acceptation atthatperiod, 
and the expressions of other sections of the charter, we might 
be led to conclude that it was synonymous with "freeholder." 
In the early practice of the government, however, it appears to 
have had a different signification; and to have been held to cm- 
brace every free resident, without regard to the possession of a 
freehold. (1) In the infancy of the colony, the elective fran- 

(\) Mr. Bozman appears to have entertained the opinion, that the term 
" Freeman," as hen Used, must be received according to its legal accepta- 
tion : and that so understood, it is synonymous with " Freeholder.'''' In con- 
firmation of his opinion, that tiny were legal lynonymei at tin- period when 
the charter was granted, be refers to Bir n. Bpelman's Glossary, word 
"Homo," Mn S na Chsrta, chap, it, Coke's 1st. Institutes, 58, and 3d Insti- 
tutes, 27 and 501. But his strongest argument is found in the fact, that 



444 ORGANIZATION OF THE [Hist. View. 

chise was not highly estimated ; and there are several instances 
to manifest, that the inconvenience of personal attendance, and 
the obligation to defray the expenses of delegates, occasionally 
caused it to be considered as a grievance. (2) It was, therefore, the 

they are used as such in the Charter itself. " Liberi Homines," are the words 
of the 7th section of the Charter, to designate the persons entitled to par- 
ticipate in legislation, and these have been translated "Freemen:" but in 
the 8th section, they are described as "Liberi tenentes," or freeholders. 

Yet, at last, the argument amounts only to this, that the proprietary was 
not bound to summon any but freeholders to the Assembly : and this appears 
to have been conceded, for otherwise his Ordinance of 1G81, restricting the 
right of electing delegates, to freeholders, or persons having a given amount 
of visible personal estate, would have been illegal. If all freemen were 
entitled under the Charter, he had no right to exclude any for the want of 
property. But the remark of the text is, that the elective franchise was 
not, in fact, so restricted before 1681 : and that before that period, all res- 
ident freemen participated in it. It was not until 1681, that any regular 
and permanent organization of the lower house was established. Until that 
time, the warrant for summoning each Assembly, directed the manner of its 
constitution. The acts relative to its organization, which are briefly no- 
ticed in Bacon's Edition of the Laws, such as the acts of 1G38, chap. 1st; 
1642, chap. 1st ; 1647, chap. 1st ; and 1650, chap. 1st, merely applied to the 
particular Assembly by which they were enacted. I have examined the va- 
rious warrants for Assemblies before 16S1, which have been preserved ; and 
none of them exhibit a restriction of the right of electing delegates, or of 
appearing in person in the Assembly, to freeholders. But we are not left to 
inferences and surmises : for we have an express decision of the Assembly in 
1642, that there was no such restriction. The following is the record entry 
of the decision : 

"Mr. Thomas Weston being called, pleaded he was no freeman, because 
he had no land, nor certain dwelling here : but being put to the question, it 
was voted, that he was a freeman, and as such bound to his appearance by 
himself or proxie : whereupon he took his seat in the house." 

Journals of 1642 ; Jlsscmbly Proceedings from 1637 to 58, 253. 

(2) We find an illustration of this at as late a period as 1671. At the ses- 
sion of that year, a message was sent by the lower to the upper house, in 
which they complained, that several delegates elect had not been summoned 
to attend, and desired to know the cause of it. To which it was replied by the 
upper, that all had not been summoned from Kent, Dorset, and Somerset, 
because the sheriffs of those counties, in making their returns, " besought 
the governor not to charge their poor counties with more delegates than 
they used to have :" and hence but two delegates had been summoned from 
each of these counties. — Upper House Proceedings, Lib. F. F. 172, 



Chap. VIII.] HOUSE OF DELEGATES. 445 

interest anil the disposition both of the proprietary and the peo- 
ple, to extend] rather than to abridge this right; and it was not 
until it was esteemed a privilege, that restrictions were imposed. 
The first restraint of this franchise was that imposed in 1681, by 
the ordinance of the proprietary, which confined it to all free- 
men having a freehold of fifty acres, or residents having a visi- 
ble personal estate of £40 sterling, within the county. (3) These 
qualifications were re-established bj law, in 1G92, and continued 
by successive acts until the beginning of the revolution; (4) and 
they were then preserved by the provisional government of 1775. 
These restrictions upon the elective franchise, having been 
thus interwoven with their institutions from a very early period, 
and not having formed any part of the public grievances, when 
the struggle of the American revolution began, or at any antece- 
dent period, it was not surprising that the people of Maryland, 
in their transition from the proprietary to the state government, 
should still have retained this feature of their institutions, with the 
objections to which experience had not acquainted thorn. Just 
elevated to the rank of an independent republic, and not yet 
familiar with the principles on which the right of representation 
in it should rest, tiny transferred to their new government the 
system of representation with which they were familiar, and of 
which these restrictions formed a prominent feature. Hence the 
original provisions of our Constitution, restricting the right of 
voting for "delegates," in the counties and city of Baltimore, 
to freemen above the age of twenty-one years, having a free- 
hold of fifty acres in the county, in which they olfered to vote, 
and residing therein at the time of election; or having property 
within the State, above the value of thirty pounds current money, 
and having resided in tin- county, in which they offered to 
vote, for one year next preceding the election. The qualifica- 
tions of roters for delegates in the city of Annapolis, were left to 
be regulated by the provisions of its charter. (•">; Property, 

(3) Proprietary's ordinance of 6th September, 1681. 
it, ictsof LI 1704, chapter 35, 1708, chapter 5, 1715, 

ehapfa r 12, and 1716, < ipter 11. 

(5) I 5th. The inhabitants of Innapolii 

ah • originally nntit 1< <l to rote for d< del county, 

upon a freehold of fifl 



446 ORGANIZATION OF THE [Hist. View. 

age, and residence, being the original qualifications, all free 
persons having these, were permitted to vote, without refer- 
ence to their citizenship or color. These provisions were con- 
tinued without alteration, until 1802, when the property qualifi- 
cation for voters was entirely abolished, and the elective franchise 
was placed under new regulations, applicable as well to the elec- 
tions in Annapolis, as to those in Baltimore city and the counties. 
These excluded persons of color, and conferred the right of voting 
exclusively upon "free white persons, citizens of the state, above 
the age of twenty-one, and having a residence of twelve months next 
preceding the election in the city or county in which they offered 
to vote. (6) In 1S10, the constitution was again amended; but 
all the qualifications prescribed by the amendment of 1802 were 
preserved, except the necessary residence, which was now redu- 
ced to twelve months in the state, and six months in the county 
or city ; and thus remains the qualification of voters to this day, 
(7) as then established. 

It is not necessary to dwell upon the propriety of the material 
change introduced by these acts. It is no longer a subject for 
debate in our state. The judgment of the state has long since 
been passed upon the property qualification, and has pronounced 
it an unjust and unnecessary restriction upon the elective 
franchise. Attempts have indeed been made elsewhere, to 
deduce arguments in its favor, from what is alleged to have 
been the experience of our state since its abolition ; but if they 
who dwell under our present system, are to furnish the evidence 
of that experience, the advocates of the property qualification, 
will not appeal to them for arguments. The best evidence 
of the experience of the state, is found in the fact, that from 
the day of the change to the present, no attempt has been 
made to return to the old order of things. That there have been 
objectors to it within our state, cannot be doubted; yet where is 
the system that has not had them ? Those who grew up under 

Constitution,) but the right was wholly taken away in 1810, by the acts of 
1809, chapter 38, and 1810, chapter 49. This was never the case as to 
the citizens of Baltimore town, who were always excluded by the constitution, 
from voting for the county delegates. (Constitution, Article 6th.) 

(6) 1801, chapter 90, confirmed by 1802, chapter 20. 

(7) 1809, chapter 83, confirmed by 1810, chapter 83. 



Chap. VIII.] HOUSE OF DELEGATES. 4 17 

the old regime, may object with that disposition, which is natural 
to man, to prefer the institutions with which his youth was fa- 
miliar, and to ascribe degeneracy to the present, just in proportion 
as he himselfbegins to be numbered with the past. Those upon 
whom the mantle of aristocracy would fall, were the right re- 
stricted, may naturally object to an elective franchise, which is no 
respecter of persons, and which enters, with impartial foot, tho 
cottage of the peasant, and the palace of the lordly. And there 
may be those who, in moments of disappointment, prefer the 
conclusion, that the right of suffrage is too extensive, to the 
admission, that they themselves may probably be wrong. 

Yet there are no well founded arguments against our extended 
right of suffrage, to be deduced from considering merely what 
are alleged to be its abuses. The mere abuse of a right is not of 
itself an argument against its propriety. It must first be ascer- 
tained, that it is the natural and direct result of the exercise of 
the right : and when this is ascertained, it must be contrasted 
with the benefits which flow from it. And if, as in the present 
case, the question is between a more and a less restricted right of 
suffrage, we must not only be satisfied of the existence of abuses 
peculiar to the extension of the right ; but also, that they over- 
balance the benefits. Were we disposed to follow out the train 
of reasoning which this contrast suggests, our system could be 
most triumphantly vindicated. None amongst us will contend, 
that the right of property is the only right to be protected or se- 
cured. The rights of life, liberty, and character, all will admit to 
be paramount. And if the right of representation be given to 
protect those who have interests at stake in the community, or 
are to be affected by its government and legislation, shall none 
but thoso who have property to protect, be admitted to its exer- 
cise ? — This is not contended for ; but it is said, that it is an evi- 
dence of an interest in the welfare of the community, and that it 
places its possessor above the reach of all temptations to the im- 
proper exercise of the right. It has its benefits : yet, can it al- 
ways, and docs it alone confer the power to exereise this right 
discreetly? Dors it alone eridence an interest in the well being 
and support of the government? When the hour of difficulty and 
danger to the commonwealth arrives, those who hnvr property, 
then claim no monopoly,: and the supporter! of government, and 



448 ORGANIZATION OF THE fHrst. Viewv 

the defenders of property, they who have borne the heat and 
burden of the day, are then found amongst those who have inte- 
rest enough in the general welfare to stake their lives or liberty in 
its defence, but are not presumed by such a qualification to have 
enough to entitle them to a vote. 

These notions arise from a misapprehension of the proper basis, 
upon which the right of representation must rest in republican 
governments. Such governments have but one surety for the pure 
and proper exercise of the elective franchise : and that consists 
in the virtue and intelligence of the people. These are not pe- 
culiar to any rank or condition in life : and whilst it is the pro- 
gressive tendency of our institutions to render intelligence as dif- 
fusive as the right of suffrage itself, we shall have reason to rejoice 
at its extension. — " He and he only is the freeman whom the 
truth makes free." Secured by the nature of our institutions 
against the abuses of this right, we shall find in it the firmest 
bonds of affection which can bind the allegiance of the citizen. 
He does not feel himself a stranger in his own land. He sees no 
privileged orders around him, exclusively directing and controll- 
ing a government which is his only for the purposes of submis- 
sion. He sees, and feels, and knows that is his, at every return 
of the day which calls upon him to exercise his rights as a free 
voter. Such days come as political sabbaths, to teach all men 
the great equality, and to bow down every heart in thanksgivings 
to the common government which sheds over all its kindly influ- 
ences : and when the hour of danger to the state arrives, the re- 
collection of these days comes rushing on the freeman's soul, to 
nerve it for the encounter, and to bare his arm for the defence. 

(2) Qualifications for the office of delegate. 

The qualifications for this office, originally prescribed by our 
constitution, as to the elections in the counties and in Baltimore, 
were, that the delegate should be above the age of twenty-one 
years — should have resided in the county or in Baltimore town, 
for which chosen, for one year next preceding his election — should 
have real or personal property within the state above the value of 
five hundred pounds — was not a minister or preacher of the gos- 
pel of any denomination — did not hold any other place of profit, 
nor receive any part of the profits thereof, (except of justice of 
fbe peace) nor receive the profits, nor any part of the profits of 



Chap. VIII] HOUSE OF DELEGATES. 4-19 

any agency forthe supply of clothing <u- provisions for the army 
or navy — did not hold any office under the United States <>r any 
of them — was not employed in the regular land or marine sen ice 
of this State or of the United States — was not a field officer of the 
militia — had not been convicted of holding or executing any 
other office of profit, or of receiving directly or indirectly the 
profits, or any part of the profits, of any office exercised by any 
other person, whilst acting as a delegate, senator, member of the 
council, or delegate to congress — had not been convicted of giving 
any bribe, present, or reward, or any promise or security for the 
payment or delivery of money or any other thing, to obtain a vote 
'o be governor, senator, delegate to congress or Assembly, coun- 
cillor, or judge, or to be appointed to any of these offices, or to 
any office of profit or trust then created or thereafter to be creat- 
ed in the State. 

(8) Constitution, Arts. 2d, 5th, 37th, 38th, 39th, 45th, and 54tb. The ori- 
gin of these disqualifications can be traced either to the antecedent proprie- 
tary government, or to the experience of the colony under the provisional 
government of 1 775 

From the colonization until 1650, the right of representation had no regu- 
lar character. Sometimes the assemblies had the nature of the " Ecclesia" 
of the Athenians. They were assemblies of the freemen generally, rather 
than of representatives. Every freeman had a right to be personally pre- 
sent ; and this right b JonaJ privilege, like that of a member of the 
English House of Peers, he might cither appear in person or by proxy, or 
join, in the election of delegates, at bis option. When the assemblies were 
so constituted, the government was a pure democracy; being administered by 
the people in prison. At other times, the freemen were permitted to ap- 
pear only by delegates or d acted in the manner pr j the 
warrants of election. The three sessions of 1G40, ami ily, 1641 
and 1 1 r character : the other sessions were of the for- 
mer, which r. After the commotions of the civil 
war had ceased, and the govet rietary by Crom- 
well's com i 1659, the Assembly consisted onlj ol - 

l ight of ro ; appearing per 

sonally, wholly ceased. Vet it was not until 1681, that any n strict* D 
pear to have been im] B] 

i ificationa 
wtm requi foi both, 

by the same acts, until • . 2dand Uh.\ 

The exclusion ■ . upon tb( lUTi h 

establishm< nt, and the 

57 



4ftQ ORGANIZATION OF THE [Hist. View. 

Of these, the original qualifications for this office, some have 
been wholly removed, and others superseded by new restrictions 
aiming at the same object. Those wholly removed are, the pro- 
perty qualification, and the exclusion of field officers of the mili- 
tia; both of which were abolished in 1810. (9) That which ex- 
cludes for conviction of having held another office or received its 
profits, whilst a delegate to congress, has ceased to exist; for 
no such conviction can now take place. Such delegates were then 
appointed by the Assembly, and were required to qualify, by tak- 
ing an oath or affirmation not to hold or execute another office, 
or receive its profits ; and the disqualifying conviction was 
founded upon a prosecution for the breach of this oath of office. 
Since the adoption of the present federal government, the office 
of delegate to congress, in the contemplation of the constitu- 
tion, has wholly ceased : the qualifications of representatives 
under the new federal government, are prescribed by the consti- 
tution of the United States; and the oath of office, on which 
alone such conviction could be founded, is no longer taken. It 
seems also that the disability, because of conviction for bribery, 
does not apply to bribery to obtain the present office of repre- 
sentative in congress ; which is entirely distinct in its nature, 
qualifications and incidents, from that of delegate to congress, as 
established by the constitution. Those which have given place 
to substitutes, relate to holding offices under the United States, 
or being employed in its service. Upon the adoption of the 
present constitution of the United States, it might have been 
questioned whether they could follow with the change, and attach 
to offices or employments under the new government To ob- 
viate all doubts, an amendment was therefore engrafted upon our 

sion that these might be promoted by permitting them to sit in the Assembly, 
This restriction, although still strictly enforced, now rests upon different 
reasons. They are now excluded upon the doctrine, which they themselves 
will approve, that those whose high and holy office is the care of souls, should 
be wholly secluded from all the turmoils and corrupting influences of politi- 
cal life. The propriety of the other exclusions had been fully manifested in 
the experience of the colony. 

(9) The property qualification, by the acts of 1809, chap. 198, and 1810, 
chap. 18 ; and the exclusion of field officers, by the acts of 1809, chap. 65, 
and 1810, chap. 78. 



Chap. Mil] HOUSE OF DELEGATES. 451 

State constitution in lld'2, which provides "that no incniher of 
congress, or person holding any oilice of profit or trust under the 
United States, shall be capable of having a seat in the General 
Assembly. (10) 

A qualification of an entirely new character was created in 
1816, by the act for the suppression of dueling: which pro- 
vides, that if any person shall challenge another to fight a duel, 
witli any weapon, or in any manner whatsover, the probable issue 
of which may he death, or shall accept a challenge to fight, or 
actually fight a duel, with any such weapon or in any such man- 
ner, he shall be incapable of holding, or of being elected to, any 
office of profit, trust, or emolument within the State. (11) This 
act has never been adopted as an amendment of the constitution; 
and as a mere act of ordinary legislation, can have no operation 
upon offices, such as that of delegate to the Assembly, for which 
the constitution has prescribed qualifications. Such disabilities 
as that created by the act of 1816, are not merely disabilities of 
the offender. They operate as restrictions of the people's right 
of choice, imposed for reasons personal to the offender. Now 
the constitution expressly empowers the people to select, as dele- 
gates, all persons having the qualifications which it prescribes; 
yet this law declares, that even these shall not suffice, if such 
persons have ofTended against its provisions. It therefore super- 
induces a qualification unknown to the constitution, and in di- 
rect conflict with the right to elect there given. Affirmative 
provisions in our constitution are always negative and exclusive 
of all mere laws, which alter or deny the rights they affirm. And 
in the present instance, as the law of 1816, if valid, would inter- 
vene to declare, that although the person proposed has all the 
qualifications of a delegate required by the constitution, yet tho 
people- > 1 1 a 1 1 not elect him, unless be is also free from the offences 
it creates, and thus controls a constitutional privilege of the 
people bj the provisions <>f a mere law: it can have no efficacy 
as to thil office. It would operate as an amendment to the con- 
stitution, and must therefore be adopted as such, before it can bo 
valid. 

1791, chip. 60 , and 1793, chap. 

<M \ ■ f 1816, chap. il9. 



452 ORGANIZATION OF THE [Hist. View. 

Upon the above summary of the qualifications for this office 
it must be remarked, that they fall under two general classes. 
The first class includes all the cases in which the person is ren- 
dered absolutely ineligible: and to this belong the several exist- 
ing qualifications, which require age and residence, which ex- 
clude members of congress and persons holding offices of profit 
or trust under the present government of the United States, and 
which disable because of conviction of bribery, or conviction of 
holding, or executing, or receiving the profits of another office. 
In all these instances, the persons lying under these disqualifica- 
tions or disabilities, are declared incapable of being elected to, 
or holding the office of delegate ; and therefore the election of 
such persons is merely void, and not susceptible of confirmation, 
by any removal of the disqualifications, before the person elect 
takes his seat in the house of delegates, or before it is vacated. 
The disabling consequences of the convictions alluded to, are 
expressly declared to be permanent ; and therefore, under these, 
no such question can arise: but if the person elect, being under 
age, or not having the necessary residence, or holding an office 
under the United States, arrives to full age, or obtains the neces- 
sary residence, or resigns his office under the United States, be- 
fore he takes his seat, or before his seat is vacated, it will not 
suffice. He was originally ineligible ; and no change in his con- 
dition can operate to render valid his election. The latter class 
includes all those causes of disqualification, which merely declare 
that the person subject to them "shall not have a seat in the 
General Assembly;" and do not expressly render him ineligible 
Of this kind are the disabilities which exclude ministers or preach- 
ers of the gospel, and persons holding other places of profit, or 
receiving any part of their profits, or receiving any of the pro- 
fits arising on any agency for the supply of the army or navy 
of the State, or being employed in its regular land or marine 
service, (although such cases as the latter can rarely arise under 
the constitution of the United States.) In all these cases, it may 
be contended, with great force, that if the disability ceases or is 
removed, after the delegate is elected, and before he qualifies as 
such, (which constitutes what is called " taking his seat,") the 
objection ceases with it. These disabilities arc now considered 
merely as creating qualifications consisting in freedom from them : 



Chap. VIII.] HOUSE OF DELEGATES. 453 

the examination of their objects and extent, as disabilities, is re- 
served tor another pari of thi^ work. 

In the elections for the city of Annapolis, the positive qualifi- 
cations, or those which relate to age, property, and residence, 
were originally left by our constitution to the regulation of its 
charter ; ( 12) and it lias been seen, that under that charter, it was 
only necessary, that the delegate should be an actual resident of the 
city at the time of election, and should have therein a freehold or 
visible estate of the value of £'20 stlg. (13) By the amendment 
of the constitution in 1810, all such parts of it as required a pro- 
perty qualification for delegates, were abolished; (1-1) and as tho 
constitution expressly adopted the qualifications prescribed by 
the charter, as constitutional qualifications for the delegate elec- 
tions in that city, and the charter itself was then expressly made 
subject to alteration by the legislature, at pleasure; (15) this pro- 
perty qualification, although regulated by the charter, must be con- 
sidered, as having been established by the constitution, and repeal- 
ed by the amendment. Hence the qualifications for delegates from 
this city are peculiar only in one respect. In the counties and the 
city of Baltimore, a residence in the county, or city, for twelve 
months next preceding the election, has always been required by 
the constitution: but the charter of Annapolis, which is in this re- 
spect unchanged, merely requires that the person elected should 
bean actual resident at the time of election. The disqualifications 
which exclude ministers of the gospel, persons in office under 
the United States, persons holding another office or receiving its 
profits, and persons convicted of bribery, or of holding another 
office or receiving its profits, apply as well to the elections in 
this city as to those in the counties or Baltimore. The power to 
elect delegates qualifii d bly to the charter, docs not ex- 

clude disabilities, which expressly apply to the office of delegate 
generally, and are established to secure its purity. 

(3) The manner of < U ft ion. 

The time, place, and manner of holding the elections for dele- 
gates, were originally regulated by the constitution; and the 

I it art. 4th. 
(13) Supra, page 255. 
11; 180 >,chap. 198 . and 1810, chap. 18. 
i) Bill •.! Rights, art. 37. 



454 ORGANIZATION OF THE [Hist. Viewv 

iconstitutional system for these elections was of the simplest 
nature. The time of election (which is yet unchanged,) was the 
first Monday of October in each year. There was but one place 
for holding the election in each county and city; and this place 
was, for the counties, their respective court houses; and for the 
city of Annapolis and Baltimore town, such as might be selected 
by their judges of election. The judges of these elections were, 
for the counties, their respective sheriffs, or, in case of sickness 
of the latter, their deputies: for the city of Annapolis, its mayor, 
recorder, and aldermen, or any three of them : and for Baltimore 
town, its commissioners. These judges were empowered to ad- 
journ from day to day ; and to keep the polls open for four days, 
if necessary : and upon the closing of the polls, they were re- 
quired to make out, subscribe, and transmit to the Chancellor of 
the State, a full return of the result. (16) 

This system remained without alteration until 1799, except as 
to the holding of the elections in Baltimore; in which, upon its 
erection into a city, the mayor and second branch of its council 
were made the judges of election. (17) It was soon found, that 
the designation of but a single place for voting was attended 
with great inconvenience to the voters ; that it opened the door 
to management and fraud; and that in the more extensive and 
populous counties, it sometimes operated as a denial of the elec- 
tive franchise. Hence, in 1799, all those parts of the constitu- 
tion, which related to the judges, time, place, and manner of hold- 
ing these elections, were wholly repealed; and these subjects 
were left to be regulated by ordinary legislation. (18) At the 
same time, an entirely new system was established by law; 
under which, the counties were divided into election districts, 
and correspondent changes were made in all that related to 
the conduct of these elections. From that period to the present, 
they have remained subject, in these respects, to ordinary legis- 
lation. (19) It is now our purpose to exhibit the present regu- 

(16) Const, arts. 2d, 3d, 4th, 5th and Cth. 

(17) Act of 1797, chap. 57, confirmed by 1798, chap. 2. 

(18) Acts of 1798, chap. 115, and 1799, chap. 48. 

(19J Act of 1799, chap. 50, succeeded by the act of 1805, chap. 97; which 
latter act, and its supplements, constitute the existing election laws of the 
State. 



Chnp. VIII. 1 HOUSE OF DELEGATES. . 465 

lations of the system thus introduced, so far as they are applica- 
ble to the elections in the counties. Those which relate to the 
elections in the cities of Annapolis and Baltimore, will be sepa- 
rately considered. Pursuing the natural order of the subject, we 
shall examine severally — the authority to hold these elections — 
the time, place, and notice of them — the manner of conducting 
them — and the proceedings subsequent to the closing of the 
polls. 

Every county in the State is divided into election districts, va- 
rying in their number, to suit the convenience of the people of 
each county. For each of these districts, three judges of elec- 
tion are annually appointed. The power of appointing these 
judges was originally vested in the county court; but in 1801 it 
was transferred to the levy court; and to the latter the power still 
belongs, except in those counties where commissioners have been 
substituted for the levy courts. (20) In Baltimore, Cecil, Harford, 
Anne Arundel, Washington, and Alleghany counties, county 
commissioners have taken the place of the levy courts; and 
therefore, in these counties, the appointment of these judges has 
devolved upon the commissioners. The regular appointments 
must be made between the first Mondays of April and August in 
each year; but vacancies may be fdled at any time. (21) Va- 
cancies arise not only from death and resignation, but also by 
removal out of the district, or from any cause which may, in the 
opinion of the levy courts or commissioners, constitute a dis- 
qualification. (22) The persons appointed must be residents of 
the district for which they are appointed. (23) The appoint- 
ment being made, the clerk of the levy court or of the commis- 
sioners appointing, is required to make out and deliver to the 
sheriff of the county, within five days after appointment, each 
appointee's warrant lor his office; and this warrant must be de- 

(20) 1301, chap. 74, sect. 22d ; and 180."., chap. 97, sect. 6th. 

(21) 1801 '. 6th. But in St. Mary's county, by the act of 
1807, chap. 28, the] are to be appointed annually in August. In the substi- 
tution of commissioner- for the levy courts, the duties of the latter, as to the 
time and manner of appointing these judges, have been cast upon the for- 
mer without change. 

(92 
13 Saint 



45G . ORGANIZATION' OF THE [Hist. View. 

livered by the sheriff within ten days after its receipt, to the per- 
son appointed, or left at his place of abode, under a penalty of fifty 
dollars for a neglect of their respective duties on the part of either 
of these officers. (24) Any one judge of election has power 
to hold the elections ; but if all neglect to attend, and one hour 
has elapsed after the time prescribed by law for opening the polls, 
the justices of the peace present, or any one justice, if but one 
present, may choose three judges of election for the particular 
occasion : and if no justice be present, they shall be chosen by 
ballot by a majority of the voters present. (25) Although these 
appointments are annual, yet it is expressly provided that the ap- 
pointees shall hold their offices until a new appointment. (26) 
Hence it is manifest that no possible case can arise, so long as 
there are voters, in which there will be a failure of the power to 
hold these elections. 

The time for holding these elections, is, and has been ever since 
the adoption "of the constitution, the first Monday of October in 
every year. In each election district there is a particular place 
for holding the elections, which was either designated at the time 
of locating the district, or has since been established by law. Yet, 
although the time and place of these elections are thus rendered 
definite and notorious, it is the duty of the sheriffs of the several 
counties, under a penalty of fifty dollars, to give notice of them 
in and for their respective counties every year, by advertisements 
set up, at least three weeks before the election, in each election 
district. (27) 

In conducting the election, the first step is, the appointment of 
the clerks of the election, and the qualification of the judges and 
clerks. There are two clerks of election for each district, who 
are appointed by the judges, who must be above the age of twenty- 
one : and who are bound to serve, when appointed, under a penal- 
ty often dollars. (2S) The qualification of* the judges and clerks 
consists in the oath of office, or affirmation, prescribed by law : 

(24) 1805, chap. 97, sect. Cth. 
(25J Same, sect. 8th. 

(26) Same, sect. 6th. 

(27) Same, section 4th. 

(28) Same, section 10th. 



Chap. VIII.] HOUSE OF DELEGATES. 457 

which must be taken by the judge before lie receives any vote, and 
by the clerk before he enters any vote upon the polls. (29) This 
oath or affirmation must be administered to the judges, by some 
justice of the peace, or by a clerk of the election if he has quali- 
fied and no justice is present : and to the clerks, by one of the 
judges, or by some justice of the peace : and a certificate of its 
administration must be signed by the person administering it, 
and annexed to the polls. (30) The duty of the clerks consists 
in recording the names of the voters : and the votes are en- 
tered by each clerk, so that they are mutual checks. It is the duty 
of the sheriff to provide a ballot box, and a poll book for each 
clerk for the entry of the votes. (3) 

Every judge of the election is a conservator of the peace, dur- 
ing the pendency of the election ; and may commit for breaches 
of it. He may also issue warrants, in the name of the State, to re- 
cover the penalties incurred by those, who, having voted offer to 
vote again at the same election in the same district or county, or 
who offer to vote, in any name not their own, or in the place of 
another person of the same name, or in any district in which they 
do not reside : and in all such cases, he may try the cause, and 
adjudge the penalty. (32) 

There are also further guards of the purity and freedom of elec- 
tions, in the penalties inflicted upon various acts calculated to 
interrupt or subvert them. Officers commissioned or non-com- 
missioned, having the command of any soldiers, quartered or 
posted within the State, arc prohibited from mustering or embody- 

(29 ptcr 97, section 11. The oath or affirmation of the judge is 

simply that he will permit all persons to vote at the election to be held by 
him, who in his judgment are legally entitled to a vote : thai he will permit 
none to vote whom he docs not consider so entitled : and that he will hi all re- 
spects discharge the duties of hit office according to the besl of !ii» know ledge, 
without favor or partiality. That of the clerk i> generally, "Thai he will faith- 
fully and without favor, affection, or partiality i of his of- 

(30) 1805, chapter 97, section II ; and 1828, chap. 159. 

(31) 1805, chap. 1)7, sections 5th and 10th. 

!5th. There i- a Bpecial power 
given to the judgi Cecil county, to appoint two constables, fov 

their i ti e on the daj .Til... 

tion. 1833, chap. I H 
66 



45S ORGANIZATION OF THE [Hist. View. 

ing any of the said troops, or marching any recruiting party, 
within view of the place of election, during the time of holding 
the election, under the penalty of one hundred dollars. (33) Can- 
didates, or other persons practising any force or violence, with 
intent to influence unduly, or to overawe, hinder, or interrupt 
any such election, are subject to indictment in the County Court: 
and may be fined any sum not exceeding two hundred and fifty 
dollars, and also imprisoned any time not exceeding fifty days. 
(34) Candidates, or other persons, at any time before or on the 
day of such elections, giving, bestowing, or directly or indirectly 
promising, any gift or reward to secure any person's vote, or keep- 
ing or suffering to be kept any house, tent, booth, or other accom- 
modation, in any part of any district, at any time during the day 
of election, and before its close, at which victuals or intoxicating 
liquors shall be gratuitously furnished to voters, are subject to in- 
dictment in the County Court, and a punishment by fine not ex- 
ceeding five hundred dollars, and by imprisonment not exceeding 
six months. (35) Voters who have voted once and offer to vote 
again at the same election in the district or county, are subject to 
a penalty often dollars : and persons offering to vote, in any name 
not their own, or in the place of any other person of the same 
name, or in any district or county in which they do not reside, are 
subject to a penalty of twenty dollars : and in all these cases, as 
these are offences which ought to be instantly repressed, the 
penalties may be immediately recovered, by warrant issued in the 
name of the State, by any justice of the peace, or judge of the 
election. (30) Persons voting twice at one election, are subject 
to punishment by fine not exceeding forty dollars, and imprison- 
ment not exceeding one month ; and persons offering more than 
one ballot with a fraudulent design, incur a penalty of twenty 
dollars : the punishment in both these cases, being enforced by 
indictment in the County Court. (37) 

(33) 1805, chap. 97, sect. 28. 

(34) 1805, chap. 97, sect. 27. 

(35) 1805, chapter 97, section 29, and 1811, chap. 204. There is besides the 
constitutional punishment for bribery by candidates, which upon conviction 
for this offence, forever excludes the offender from any office of profit or 
trust in the Slate. Const, art. 54, and supra page 449. 

(36) 1805, chap. 97, sect. 25. 

(37) 1805, chap. 97, sections 12th and 26th. 



Chap. VIII.] HOUSE OF DELEGATES. 459 

The polls are to be opened at nine o'clock. A. M., and closed 
at six o'clock, P. M. The voting is by ballot, on which must bo 
written or printed, the name of the person voted for, and the pur- 
pose for which the vote is given plainly designated. The ballotis 
received by a judge of election, by whom it must be deposited, 
without examination, in the ballot box, where it must remain until 
the closing of the polls: and any attempt by such judge or any 
other person, to discover the contents of a ballot by opening or 
unfolding it, subjects him to a penalty of fifty dollars. (38) In all 
cases where there is any doubt as to the right to vote, it is the duty 
of the judges to scrutinize it: and in doing this, they are empow- 
ered to examine on oath or affirmation, the person offering to vote, 
or any other person. (39) 

The viva voce mode of voting was originally prescribed by the 
Constitution : and it continued to be the mode of voting in this 
State, until 1801, when it was superseded by that of voting by 
ballot. This change was introduced by the same Act which swept 
away the property qualification of the voter: and was intended to 
take away the indirect, whilst the latter took away the direct in- 
fluence of wealth upon the elective franchise. Both changes ap- 
pear to have sprung from the experience of the State during the 
national revolution which elevated Mr. Jefferson to the Presiden- 
cy. There is a great contrariety of opinion, about the compara- 
tive excellence of these two modes of voting : yet the present 
appears to be better adapted to the nature of our government. 
The contrary doctrine is maintained by Montesquieu, upon prin- 
ciple-; which do not accord with it. "The people's suffrages,'' 
tight to be public, and this ought to be considered a 
fundamental law of democracy:" and the reason he assigns, is, 
"That the lower orders of people Ought to be directed and re- 
strained by those of "higher rank-." This is the very reason 
why it is excluded by our laws: and the assignmenl of it shews, 

thai they have pursued the proper mode of excluding what they 
held to be an improper influence. A republic rests for its true 
basis upon the virtue and intelligence of its citizens: and these 
are the only proper guides to direel them in til'' i icer< ise of the 
righl of suffrage. Such a reason might apply to a Constitution, 

- 1805, i b i l I 

(39) 1819, chap. \1A 



4G0 ORGANIZATION OF THE [Hist. View, 

by which the lower sort of people (as Montesquieu terms them,) 
are regarded as mere machines, destitute of all sense of self-in- 
terest in the administration of the public affairs, and impelled to 
a proper exercise of the elective franchise, only by the instructive 
example or overawing influence of the higher orders of society ; 
but it can have no place in a government like ours, where all per- 
sons having the right of suffrage, are not only presumed to be 
self-willed in the exercise of it, but where also every tendency of 
our government, and of all our institutions, is to form that will 
aright. Why give the right of suffrage at all, if the voter is to 
consult the will or bow down before the influence of others, in its 
exercise? Where it is so exercised, the government may be in 
form a democracy ; but it is in point of fact an aristocracy, which 
mocks the many with the show of power, whilst the substance is 
in the hands of the few. Where persons act in a representative 
capacity, the votes given by them should be open to the scrutiny 
of their constituents : but there exists no such responsibility, to 
require or sanction such a scrutiny, in the ordinary exercise of the 
elective franchise. The proper exercise of this franchise requires 
but that which is open to every understanding, a knowledge of the 
character, sentiments, and habits of those, who are to be selected 
for the protection of the public interests. It has nothing to ap- 
prehend from the free will of the voter, or the regulations which 
are calculated to protect it : but it has every thing to fear from ex- 
ternal influences, which may tend to corrupt it. 

When the polls are closed, the ballot box must then be opened 
by the judges of election, or some one of them, and the ballots 
taken out and read aloud in the presence of those who may choose 
to attend : and as they are read, the votes must be entered by the 
clerks on their poll books, so that the number of votes given for 
each candidate may distinctly appear. During the counting of 
the ballots, if there should appear upon the ballot more names 
than there ought to be, or if two or more of them are deceitfully 
folded together, or if the purpose for which the vote is giv6n is 
not clearly designated on the ballot; in all such cases, the ballots 
must not be counted. After the counting of the ballots is com- 
pleted, and the number of votes given for each candidate is as- 
certained, the judge or judges of election present, are required to 
give two certificates of the number of votes given for each candi- 



Chap. VIII.] HOUSE OF DELEGATES. 461 

date ; in which shall be .stated, the office for which he received 
the rotes, and the number of votes, in words al length; and these 
statements -hall be made on the two poll books, and shall be at- 
tested by the clerks of election, or one of them. The Mth sec- 
tion of the act of 1805, chap. 97, prescribes a form, according to 
which or to the like effect, (says that section,) these certificates 
must be. All that is absolutely necessary in the certificates is, 
that they should state the authority of the persons certifying to 
hold such election, and whence derived — the county and district 
in which, and the time and place at which held — the qualifica- 
tion of the judges, and the appointment and qualification of 
their clerks — the opening and closing of the polls' at the 
time prescribed by law, and the election for which they were 
opened- — the counting of the ballots and the result of tlie count. 
Any certificate which sets out these particulars is substantially 
good. (40) 

Thus the result of the election is ascertained in each election 
district in the county ; and it only remains to determine the ag- 
gregate result for the county, and to prepare and transmit the 
final return. For this purpose, the presiding judge of election in 
each district, or in case of his inability, one of the other judges, 
is required, under a penalty of five hundred dollars, to attend at 
the place of sessions of the County Court with the poll books for 
In- district, on the second day after the election: and the judges 
from the several districts so assembled, are then required to make 
out two certificates or final returns of the election. The Act di- 
recting this, requires that these certificate.-, should shew the Dum- 
ber of votes given for each candidate : and yet the form for the 
return of delegate elections, prescribed by it, merely states the 
persons having the greatest number of legal votes. The bet- 
ter form would be, to set oat the number of votes given for each 

(10) 1803, chap. 97, sections 13th and 1 Itli. For their services in the con- 
duotofthe ■ illy, the judges and clerks of election are allowed 

each, uodei I J \aw, four dollars for each dayYattendance In rec< 

• turn-, : which i- 1 . . i . - . i with the county or city charge*), 

■ lion 31.) in Allegan] and Baltimore 

counti<-, this allowance is redoe* <i to two dollars per day : (1810, chap. 4C, 

and 1827, chap. J Chester, to rs. (1827, chap. 16 land 

• the compensation for making returns is Wholly taken away. 

(1829, chap. 7.) 



46-2 ORGANIZATION OF THE [Hist. View. 

candidate ; and then in the declaring or returning clause, to name 
the persons elect. If any of the judges fail to attend on the 
day assigned, the other judges in attendance, may adjourn from 
day to day until the attendance of the whole can be procured. 
These final returns being completed, the judges must address one 
of them to the Chancellor, and then enclose it under cover, direct- 
ed to the Governor and Council, and endorsed, " on public ser- 
vice;" and must place it in the next post-office within one day 
after their meeting. The duplicate must be lodged together with 
the books of polls, within the same time, with the clerk of the 
county, who is required, under a penalty of one hundred dollars, 
to make out a true copy under seal of office, and transmit it to 
the Governor and Council in the same manner. Thus the returns 
are ready to be delivered to the House of Delegates upon its assem- 
blage : to which it alone belongs to determine all that relates to 
the election and qualifications of its members. (41) 

(4) Peculiarities of these elections in the cities of Baltimore 
and Annapolis. 

The qualifications for voters and delegates, in these cities, 
have already been considered; and it remains only to examine 
the mode of proceeding in their delegate elections, where it dif- 
fers from that prescribed for the counties. 

These elections for Baltimore town were originally held by its 
commissioners; but after its erection into a city, this duty was 
transferred to the mayor and second branch of the city council, 
with whom it remained until 1799. (42) Until this period, there 
had been but one place for holding the elections in this city as 
well as in the counties; but a new system was then adopted for 
both. The eight wards, into which the city was divided for the 
election of its city council, were made election districts for the 
delegate elections; and the judges of elections for members of 
the first branch of the council then became, and have ever since 
been, judges for the latter elections also. (43) In 1817, the 
number of the city wards was enlarged to twelve; and for the 
future, the wards, whatever might be the change in their num- 

(41) 1805, chap. 97, sections 15th, 17th, 19th, and 20th. 

(42) Const, art. 6th; and act of 1797, chap. 57. 

(43) Acts of 1798, chap. 115; and 1799, chaps. 30 and 48; 1805, chap. 97, 
sect. 22. 



Chap. Vlll.i HOUSE OF DELEGATES. 403 

bei or limits, were established by tlie constitution as the election 
districts for those and other elections. (44) The time of hold- 
ing the election is the Bame as in the counties, and the notice is 
given by the mayor of the city; but the time and manner of the 
notice appears to be discretionary, except in elections to fill va- 
canci--. | L5) In all that relates to the duties and powers of the 
judges of election, in opening, conducting, and closing the elec- 
tion, and in ascertaining and reporting the result; and in all the 
sanctions which enforce or sustain these, the elections for this 
city conform entirely to those for the counties. 

In Annapolis, the delegate elections are still held by the 
mayor, recorder and aldermen, or any three of them, who 
designate the place of election, and return the result to the 
Chancellor. (46) They are peculiar only in the power to 
keep the polls open for four successive days. This original 
power under the constitution has never been taken away; al- 
though some of our laws seem to have contemplated its aboli- 
tion. The amendment of the constitution, in 1799, referring the 
time, place, and manner of elections to the regulation of ordina- 
ry laws, did not extend to the (lections in Annapolis; and there- 
for.- the election laws since passed, which restrict the time of 
ion to a single day, being mere laws and not amendments 
of the constitution, have not affected this power. 
Elections to fill vacancies. 

acies arise by death, refusal to serve, resignation, remov- 
al out of the State, <>r from some of the causes already described 
as incapacitating for the office of delegate. (47) When they 
occur and arc ascertained by the house, a warrant of elec- 
tion to till tli j must be immediately issued by its speak- 
er. This warrant goes to the sheriff of the county, or the mayor 
of die city of Baltimore, or the mayor, recorder, and aldermen 
\ima|.oii- maybe. The election must be held 
within fifteen ceipl of the warrant; and notice 

of the time and place of holding it musl be given by the person 
or persons to whom the warrant is directed. In Annapolis and 

1-17, ebap. 51; ami 1813, chap. 87. 

(46) Court, art. 4th. 

Const, art. 7th, ami supra, 448. 



464 ORGANIZATION OF THE [Hist. View. 

Baltimore, this notice is ten days, exclusive of the day of notice 
and the day of election. In the counties, it has been reduced to 
eight days exclusive. The manner of giving it is discretionary 
in° Annapolis and Baltimore; but in the counties, it must be 
given by advertisement, set up at the most public places in each 
district. It is also the duty of the sheriff of any county, or the 
mayor of Baltimore, upon the receipt of any such warrant, to 
cause a copy of it to be served on each of the judges of election 
at least three days before the day of election. Elections to fill 
vacancies are, in all other respects, conducted in the same man- 
ner as the regular elections. (48) 

(6) Distribution of the right of representation. 

The house of delegates consists of eighty members, of whom 
four are chosen by each of the nineteen counties of the State, 
and two by each of the cities of Annapolis and Baltimore. 

With reference to the several counties of the State, the principle 
of our present system of representation in the house of delegates 
is "perfect equality, because of distinct county interests, without 
regard to difference in territory or population." Nor is there any 
proportionate representation of the latter in the Senate. Hence 
our Assembly has not, strictly speaking, any popular branch, any 
branch which may be called the image of the people. This system 
imparts to the State the character of a confederacy of counties; and 
unless so regarded, it has no governing principle. But when we re- 
cur to the circumstances under which it was adopted, we discover 
that its form is merely arbitrary and conventional. In our exami- 
nations of human institutions, in whatever age or under what- 
ever circumstances they originated, and however rude in their 
form and disproportioned in their parts, we are constantly in 
search of some general and governing principle to account for 
their existence. We will have a reason: and that reason must 
be a principle. Yet experience should teach us, that human in- 
stitutions, for the most part, spring from and are moulded into 
form by adventitious circumstances, and are not the creations of 
a principle. The forms of government are very generally, the 
results of fortuitous circumstances, the effects of compromise, or 
the work of gradual concessions or assumptions of power. The 
history of the world has exhibited but few instances, in which 

(48) 1805, chap. 9T, sects. 23 and 35; 1823, chap. 213; and Const, art. 4th. 



Chap. VIII.] HOUSE OF DELEGATES- 4G5 

the social compact was move than a mere theory, or in which men, 
in moments of tranquillity and reflection, have cast oft* all their 
political connexions, have returned to a state of nature, as pre- 
liminary to the establishment of a new and better state of socie- 
ty, have devoted themselves to the investigation of the true 
principles of government, and have remodelled their government 
upon those principles, without reference to their previous condi- 
tion. Attachments to forms under which we have long lived, 
partialities for customs and prejudices, devotion to familiar feel- 
ings, and subserviency to jealousies, will cling to us, even in the 
transition from an old to a new government. 

Knowing this, we have a clue to the causes of our present 
delegate system, without being driven to a vague and fruitless 
search for some principle on which to rest it. We have seen 
that, under the proprietary government, for a long time anterior 
to the revolution, the same equality of county representation 
prevailed, and the same number of delegates were allotted to 
each county. (19) This was the system under which the framers 
of the constitution had grown up, and with which they were fa- 
miliar, as interwoven, not only with their own institutions, but 
also with those of the parent country. It was also accom- 
modated to their shore and county jealousies; and being thus 
identified with the feelings and habits of the people, it is proba- 
ble that any attempt to repudiate it, and to substitute in its stead a 

(49) Until 1650, the delegates were elected for hundreds or settlements ; 
and the warrant for each Assembly specified the number to be elected for 
each hundred. There was no regular delegate system before this period ; 
and perhaps this arose from the existence of the right then generally con- 
ceded to the freemen of appearing in the Assembly in person or by proxy. 
It was not until i the Lower House was made to consist only of 

delegates, that its organization became regular. At the session of 1059, 
four delegates were called from each county ; and from this period until 
. with one • I ic summon^ permitted the election of two, three, 

or four delegates in each, at the option of its people. In the latter year, 
the i. two, by tin i] \ \ oi'linancc ; but in 1G92, 

after the establishment of the royal rnment, the constitution of the- 

Lower House w ind four delegates were again allotted 

to each county. Th otation thus established upon the basil 

of equality amongst the counties, existed without alteration until the Am> ti 
can revolution. 



466 ' ORGANIZATION OF THE ' fHist. View. 

representation based upon territory, property, or population, or on 
a ratio compounded of any or all of these, would have alienated 
the affections of many of the inhabitants, would have roused the 
jealousies of the smaller counties, and would have left the State 
the prey of internal dissensions, at a moment when all her ener- 
gies were required in her struggle for independence. (50) Our 
constitution was framed at a very early period of this struggle; 
and in its formation, it was necessary to regard sectional rights 
and feelings with the utmost tenderness, and to omit nothing in 
the effort to brinu them into harmonious concert against the 
common enemy. Like Solon's laws, it was the best of which 
their condition would admit ; and formed, as it was, whilst the 
enemy was at the door, we can readily account for the retention 
of the old system of representation. 

Frequent and vigorous efforts have been made to change this 
system; in some instances, by attempting to substitute one 
founded upon the basis of population ; and in others, by propos- 
ing merely to enlarge the representation from Baltimore, so as to 
place it on an equality with the counties. All the attempts to 
substitute the basis of population, have hitherto proved entirely 
fruitless; nor have they ever been sustained by such a vote as to 
encourage the belief, that they will ultimately be successful. 
There are two prominent causes which always have operated, 
and probably always will operate, to prevent such a change : and 
these are, the unequal distribution of the population of the Stale 
amongst the counties and the two cities, and the supposed ex- 
istence of distinct shore interests, with its train of shore jealou- 

(50) The prevalence of shore jealousy is strikingly manifest in some of 
the proceedings of the Convention -which adopted our State government. A 
proposition was actually made in that convention to insert an article in the 
Declaration of Rights, acknowledging the right of either shore to separate 
from the other, when it should deem it to be for its interest and happiness. 
It was amended so as to give this right, whenever sanctioned by a majority 
of the voters in every county on the shore desiring to secede ; and in this 
amended form, it actually received seventeen votes, all of which, save one, 
were given by Eastern Shore delegates. Out of twenty-one Eastern Shore 
members voting on this proposition, sixteen were for it, and but five against 
it ; of the twenty-six Western Shore members voting on it, twenty-five were 
against it, and one for it. [Journals of Convention, 3d Nov. 1776. 



Chap. VIII.] HOUSE OF DELEGATES. 467 

sies. A very slight observation of the local peculiarities of the 
State will convince us, that its population will probably, for a 
long time, be so distributed, as to render a majority of the coun- 
ties' jealous of any change which would look to this basis. 
Along the shores of the Chesapeake Bay, there always has been 
a considerable direct commercial intercourse with other states, 
and with other cities; yet the operation of this is not likely to 
raise up, within the State, a commercial rival of the city of Balti- 
more. The object of such a commerce has been, and will be, 
principally, to be their own factors: and to supply themselves 
with such' merchandize as they want for their own consumption. 
Baltimore is, therefore, destined to remain for a long time, and, 
we trust, for ever, the commercial emporium of the State ; and 
if she makes a proper and timely use of all the local advantages 
with which she has been so liberally endowed by Providence, she 
will also be the great commercial emporium for the western states. 
Her population, even now, is more than one-sixth of that of the 
whole State; and is likely to increase in a greater ratio than 
that of the counties. It will also be perceived, in contrasting 
the several counties of the state with each other, both as to their 
past and present condition, that there are three or four, whose 
population now greatly exceeds, and is likely to continue to ex- 
ceed, that of the rest. Without even looking to the effect which 
will probably be produced upon the three extensive counties of 
Frederick, Washington and Allegany, by the projected improve- 
ment.-, hading through them to the west, it will be seen, that the 
preponderance of population in three or four counties will be 
likely to continue because of their territorial extent, even if the 

sea of the improvement pi decline of the State were to ope- 
equably upon all sections. The objection, therefore, which 

hitherto 1 I against a representation based on popu- 

lation, thai it would place the power of the- State in the hands of 
to city of Baltimore, and three or four of the largest counties of 

the Mate, is likelj to remain open to B uch objectors; and so long 
M , ,1 a sufficient reason, no change will be effect- 

ed. The truth is, that a majority of the oounties, who now wield 

a majority of votes in the house of d< will, in a compara- 

tive view, always remain small counties, and do not expect to 

add to th< it relative weight in the legislature, bj such .1 oba 



468 ORGANIZATION OF THE [Hist. View, 

Some of them believe, that the allotment of delegates according 
to population would not increase their representation ; and 
others, that theirs will be greatly diminished : and they therefore 
make a common cause against a change, by which none expect 
to gain, and most of them fear a great loss of legislative power. 
Those who have power, be they the majority or minority, rarely 
surrender it voluntarily ; and always conclude that it is as safe in 
their hands as in those of others. 

It is also urged as an objection to any alteration of the pre- 
sent system, that it would destroy the present proportions in the 
distribution of the legislative power. In both houses of Assem- 
bly, the power of the Eastern Shore is to that of the Western, 
as two to three; and the members from the former are always 
opposed to a system, which would so materially reduce their 
shore power. 

These considerations, so long as they are sustained by the 
notion of distinct shore interests, and by those singular apprehen- 
sions of Baltimore influence, which have so long prevailed in a 
State of which she is the pride and ornament, are calculated to 
give permanency to the present system. There is, however, one 
alteration of it, relating only to the representation of the city of 
Baltimore, which, it is believed, the justice and magnanimity of 
the State will yet accord to her. This proposes merely to in- 
v crease the number of her delegates to four, so as to place her 
on an equality with the counties. It received the sanction of 
the legislature at the session of 1824, but was not confirmed, as 
the constitution requires, at the ensuing session. It was the 
writer's lot to participate in the discussion before the legislature, 
which led to the passage of the bill of 182 i ; and in those after- 
wards elicited by its submission to the people ; and thus to be- 
come familiar with all the feelings and motives of opposition to 
the change proposed by that bill. On that occasion it was re- 
sisted, not so much on account of its immediate objects and 
effect in raising the representation of Baltimore to an equality 
with that of the several counties, as for its supposed tendency 
to extend the hand of innovation to the whole system, and to 
strengthen her claims for a further increase. Without regarding 
it as the beginning of innovation, it was difficult to find an argu- 
ment of justice or expediency, upon which the bill could be re- 



Chap. VIII.] HOUSE OF DELEGATES. 469 

sisted. By the very grant of a partial right of representation, 
this city is admitted as a distinct member of the quasi-confede- 
racy, having distinct interests: and these, as the interests of a 
great and growing commercial city, are peculiar in their nature, 
belong to a larger population, exceed in value those of any 
county of the State, and require more legislation. Hence what- 
ever basis may be adopted, be it population, or distinct interests, 
or property, or the necessity of peculiar and frequent legislation; 
in all, she is at least confessedly equal. And it is most manifest > 
from the provisions of that article of the constitution, which 
gives her her present representation; and declares that it shall 
cease, if her population should so decrease, as that the number 
of her voters for seven successive years shall be less than one 
half of those of some one county of the State, until it shall 
regain that number of voters; that the framers of that article 
never had in prospect, even the state of wealth, prosperity, and 
population, to which she has now attained. (51) 

Yet whilst the present system is thus guarded and fenced 
about by power and feeling, which are likely to insure its con- 
tinuance, the course prescribed by duty and policy to all sec- 
tions of the State is obvious. The constitutional mode of amend- 
ment is at all times open, and proper to be resorted to ; but mere 
murmurs and revilingscan never answer any other purpose than 
to produce sectional jeslousies and heart-burnings, to the preju- 
dice of the whole. In most of our reasonings about the forms 
of government, we arc too apt to confound the means with the 
end. Political liberty and power arc treated, as if they were the 
sole objects of human society; but as used here merely to de- 

(51) Const, art. 5th. This clause did not make a part of the constitu- 
tion, as originally reported to the convention by its committed It was a 
part of an amcndim ut to it, proposed in convention by the late Judge J. T. 
Chase, one of the delegates from Baltimore town, in which this proposition 
for reduction was accompanied with one for an increase to four delegates, 
whenever the town should have an equal number of voters with anyone 
county in the State. This proposition was a ?erj fair application of the 
golden rule : but the convention were content to take its operation in ono 
way only. When it was put to the vote, a division of the question was 
oalled: the elan i was incorporated into the constitu- 

tion : and then the proposition for increase, for which the other was a 
mere purveyor, was rejected by a large majority. 



470 ORGANIZATION OF THE [Hist. View. 

note the degree of our participation in the government, they are 
the mere instruments hy which our civil liberties are secured and 
protected. We cede a portion of our natural rights, and out of 
these ceded portions we form a government: only, that through 
its instrumentality, we may secure to ourselves the full and effi- 
cient enjoyment of our rights of person and property. Hence, 
in republican governments, the power which is to be exercised for 
the benefit of the people, is made to spring from them: because 
thence to derive it, is to insure its most beneficial exercise in the 
accomplishment of the objects for which it was instituted. And 
whilst it in the main accomplishes these objects, it is useless to 
s jeopard the substance by wrangling about the forms. There 
may have been moments, in which the rich and various resources 
of the city of Baltimore and the larger counties have been pecu- 
liarly operated upon by State taxation: yet in the most of these 
cases, the tax was not peculiarly imposed upon them, but be- 
came peculiar in its operation only because the narrow resources 
of other sections denied to them the possession of such objects 
of taxation. Discrimination in taxation will always be the result 
of the most uniform and impartial system, where wealth is so un- 
equally distributed: and at last it will be found, that those who 
contribute most to the support of government, are those who en- 
joy most of that security which it imparts to the possession of pro- 
perty. In the recent encouragement and aid given by the State to 
the city of Baltimore, in the stupendous work of improvement 
which she has projected and is now conducting with such vigor and 
success, we have an earnest of good feeling, which deserves to 
be cherished in remembrance. And if we look through the mass 
of legislation peculiar to her, we shall find her favoured in all 
her institutions. Under such circumstances, a course of gene- 
rous concession and forbearance on all parts, will probably rid 
us, in a few years, of those sectional jealousies, and heart- 
burnings, which have so long infested our State: and she will 
become what she should be, one and indivisible, in the great work 
of self-improvement. And to (he city of Baltimore, whose in- 
terests are bound up icith those of the State, it especially belongs, 
to remember the rule of policy — 

"Be to her faults a little blind, 
And clap the padlock on her mind." 



Chap. VIII.] HOUSE OF DELEGATES. 471 

In passing from this subject, it will be proper to advert to the 
peculiar organization of the Senate, as one which will of necessi- 
ty be remodelled, if the representation of the House 5 hould eyer 
be baaed on population. The Senate consists of but fifteen mem- 
bers who are chosen by the electoral college from the State at 
lar^e. By consequence, out of the nineteen counties and two 
cities, there must always be at leat six without any represen- 
tation whatever in the Senate : and as the electors or the Se- 
nate (as the case may be,) may always choose from the State at 
larae, there is no constitutional security for any county or city, 
that she shall be represented in that body. Now, it will be con- 
ceded, that each county ought to be assured of a representation 
in some one branch of the legislature ; and that having different 
resources, different wants, and distinct county inteiests, she ought 
not only to be represented, but her representation should be of 
such a character, as to explain her wants and interests, and to sus- 
tain her rights against the unjust aggressions of other counties. 
The approved principle with regard to the constitution of a le- s 
gMature, seems to be, that where the several members of a com- 
munity, whether counties as in the State Governments, or States 
a, in the General Government, are unequal in territory, wealth, 
population, and all that constitutes influence, and are clothed 
with distinct interests; there should be lodged in some branch 
of the legislature, a checking power, for the protection of the 
smaller members. Our legislature presents anomalous features. 
The county representation, and the checking power for the pro- 
tection of county interests, exist only in the house of delegates ; 
and if i> pr< Ben1 organization were changed, it would infallibly 
lead to a change in that of the Senate, so as to give a senator to 
each county and city. The results of this amended sj item would 
not, therefore, vary very materially from those of the present; and 
so far as the city of Baltimore and the larger counties arc concern- 
ed, it may well be questioned, whether they would gain by the 
change. The magnanimity of the State has generally accorded 
to the city of Baltimore two senators, so that in that body she has 
two-fifteenths of the whole power: which is nearly the proportion 
her population bears to thai oftfo knd this power is more 

valuable m this small body, than a similarly proportioned power 



472 ORGANIZATION, &c. [Hist. Tiew. 

would be in a body so numerous as the House of Delegates; and 
can there be exercised most advantageously for her protection. 

(7) Tenure and compensation of the office of delegate. 

The office of delegate endures for one year from the time of 
election : if not sooner vacated, by death, resignation, removal 
out of the State, or some of the constitutional causes of disquali- 
fication already described. As a suitable compensation for his 
necessary expenditures, each delegate is entitled to receive from 
the public treasury, four dollars per day for each day's attendance 
as such at the seat of government, and a fixed allowance for itin- 
erant charges, resting upon usage cotemporaneous with the go- 
vernment. (52) 

(52) Acts of 1796, chap. 41, and 1811, chap. 156. The itinerant charges 
given to the delegate by usage, consist in the allowance of a per diem, for every 
twenty miles of travel from the seat of government to the seat of justice of 
his county as computed at the time at which the usage was established, and 
also of a small and fixed allowance for the expenses of ferriage. 



CHAPTER IX. 



THE ORGANIZATION OF THE SENATE. 

In examining the organization of the Senate, we shall consi- 
der — (1) The election of the electors of the Senate — (2) Their 
proceedings in the choice of a Senate — (3) The qualifications for 
the office of Senator — (4) The mode of filling vacancies in the 
Senate — (5) The tenure and compensation of the office of Sena- 
tor — (6) The nature and tendencies of the present structure of 
the Senate. 

(1) T)ic. election of the Electors of the Senate. 

The Senate of Maryland is not chosen directly by the people, 
but by an electoral college, consisting of forty members, of 
whom two are chosen by each of the counties, and one by 
each of the cities of Annapolis and Baltimore. The Electors 
must have the qualifications necessary for delegates; and 
are elected by those only, who arc entitled to vote for del- 
egates. The elections are held on the first Monday of Sep- 
tember in every fifth year, reckoning from the first Monday of 
September, 1806. (1) They aro held at the same places, in the same 
manner, and by the same judges, as the delegate elections : and 
all the prercliii^ remarks, as to the manner of opening and con- 
ducting the latter elections, the duties of the judges and clerks, 
the provisions to secure the purity and freedom of elections, and 
the manner of ascertaining the result at each poll and the aggre- 
gate result in the county or city, are here applicable, varying the 
pro< oate the purpose of the election. 

There is a special form of return f'>r the flection of electors: but 
it is substantially the same with that for the delegate flections, 
except as to the time and purpose of (he election. (2) In the 

(1) Const, art. 14, aiul l-D."., chap. 97, sect. 9th. 

(2) 1805, chap. 97, sect. 15tb, and SO] MB- 

60 



474 THE ORGANIZATION OF THE SENATE. [Hist. View. 

counties and Annapolis, the right to their electors is given abso- 
lutely : but that of the city of Baltimore endures only as long as 
her right to elect delegates, which, as we have seen, ceases, when- 
ever her inhabitants shall have so decreased, that the number of 
her voters for seven successive years shall be less than one-half of 
the number of voters in some one county of the State, but 
returns as soon as her voters shall have again increased to that 
number. (3) 

(2) Their proceedings in the choice of a Senate. 

The Electors thus chosen are required to meet at the city of 
Annapolis, or the place of the Assembly sessions, wherever that 
may be, on the third Monday of September next ensuing their elec- 
tion, to proceed to the election of the Senate. (4) Any twenty- 
four of them constitute a quorum, and may go into the election : 
but before the electors can act as such, they must qualify in the 
manner prescribed by the constitution. (5) If there be any 
doubts or contest as to the election of any person returned or ap- 
pearing as an elector, these must be determined before the col- 
lege goes into the election of the Senate ; and when such con- 
tests arise, the college is the exclusive judge of the qualifications 
and election of its own members, and shall admit, as elector, the 
person qualified and appearing to them to have the greatest num- 
ber of legal votes. (6) 

When the members have qualified, and all cases of contro- 
verted elections are determined, the college must then proceed 
to elect fifteen senators, of whom nine shall be residents of the 
Western, and six of the Eastern shore : but this distribution being 
respected, they are subject to no other restriction, in choosing 
amongst persons qualified for the office of senator. The sena- 
tors are chosen for shores, without respect to counties or other 

(3) Const, art. 14th, and supra. 

(4) Const, art. 15th. 

(5) This qualification consists in taking the oaths of office, and the test 
declaration. Their oath of office is prescribed by the constitution, as amended 
by the act of 1822, chap. 204. The test declaration consists in making and 
subscribing a declaration, of belief in the Christian religion, or, if a pro. 
fessor of the Jewish religion, of a belief in a future state of rewards and 
punishments — Const. 55, and act of 1824, chap. 205. 

(6) Const, art. 17th. 



Cbap. IX] THE ORGANIZATION OF THE SENATE. 475 

civil divisions ; and the college may, at its pleasure, select all 
the senators for either shore, from any one county. The distri- 
bution of them amongst the several counties of cither shore, is 
regulated entirely by its discretion. They are even permitted to 
select the senators from amongst the members of the electoral 
college. The election is by ballot; and the senators must all 
be ballotted for at the same time. Upon the ballot, out of those 
proposed and ballotted for as senators, the nine amongst the resi- 
dents of the Western shore, and the six amongst the residents of 
the Eastern shore, having the greatest number of votes, shall be 
declared and returned duly elected. If, on the first ballot, two 
or more persons have an equal number of votes, and it is neces- 
sary to exclude some of them, a second ballotting shall be had 
as between these candidates only, before the electors separate; 
and if on the second ballot there is still an equal vote, the elec- 
tion must be made by lot. The election being completed, the 
electors must then certify their proceedings under their hands, 
and return them to the Chancellor. Their duties then cease ; 
and with them, their offices. (7) 

(3) The qualifications for the office of Senator. 

The original qualifications for this office, relative to age, pro- 
perty, and residence, required that the senator elect should be 
above the age of twenty-five, should have resided in the State 
for three years next preceding his election, and should have real 
or personal property within it above the value of one thousand 
pounds. (8) The property qualification was abolished in 1810; 
(9) those as to age and residence are still requisite. 

The causes of disqualification for this office are the same in 
all respects, except as to age and residence, with those which 
exclude from the office of delegate ; and it will therefore be suf- 
ficient to refer, for these, to the preceding remarks upon the 
qualifications for the latter office. (10) 

(4) The mode of filling vacancies in the Senate. 
Vacancies in this body arise by dea:! refusal to serve, resig- 
nation, removal out of the State, or from some of the causes of 

(7) Const, art. 10th. 

(8) Const, art. 15th. 

(9; 1309, chap. 198 , and 1810, -hap. 18 
(\0) See page 148 



476 THE ORGANIZATION OF THE SENATE. [Hist. View, 

disqualification already alluded to. When they occur, the right 
to fill them devolves upon the Senate; which shall, immediately 
after they occur, or at its next meeting, elect by ballot, in the 
manner prescribed for elections by the original electors, another 
qualified person for the remainder of the senatorial term. (11) 

(5) The tenure and compensation of the office of Senator. 

The Senators are chosen for five years, but are liable to re- 
moval for the causes of disqualification already described. We 
have remarked upon these, as constituting original qualifications 
for the office of Senator or Delegate ; and their effect and man- 
ner of operation in vacating these offices, when they attach upon 
their incumbents after election and qualification, will be fully 
examined in one of the following chapters. 

The compensation of the Senator is the same as that allowed 
to the Delegate. (12) 

(6) The nature and tendencies of the present structure of the 
Senate. 

In every well organized government, it has always been a car- 
dinal object with its framers, so to constitute its legislature, that 
whilst it is the ever ready organ of the well ascertained and well 
regulated will of the people, it is yet, to a certain extent, above 
the reach of those momentary prejudices and passions, and hasty 
and short-sighted views, which at times pervade every communi- 
ty. To place the popular will as embodied in acts of legislation 
above such influences, is one of the most prominent and useful 
designs in the delegation of legislative power to representative 
bodies. In extended republics, this is necessary, because of the 
inability of the people generally to attend in person to its exer- 
cise : yet it is recommended by the additional consideration of 
its tendency to purify the public will. Even in small republics 
or democracies, such as were some of those of antiquity, where 
there was no such inconvenience in the exercise of this power 
by the people in person, it was yet found salutary to delegate it 
to a select assembly. The utmost excesses, and the wildest 
anarchy, were found to flow from the exercise of it, by the com- 
munity in mass. The effects of such a mode of legislation are 

(11) Const, art. 19th. 

(12) See 472. 



Chap. IX.] THE ORGANIZATION OF THE SENATE. 477 

strikingly exemplified in the Ecclesia or general Assembly of the 
Athenian people; which, being invested by Solon with the su- 
preme powers of government in the last resort, deprived the 
government, by its irregularities, of every thing like uniformity 
or consistency in the public operations. Some checks were in- 
terposed, by the creation of the Senate, and the revival of the 
Areopagus: yet although its tendencies were thus, in some mea- 
sure, counteracted, they have always been reckoned amongst the 
most prominent causes of the downfall of that republic. Histo- 
ry is full of illustrations of the truth, that the people, for whose 
benefit government is instituted, find great advantage in distri- 
buting its powers amongst responsible agents, each having a few 
specific duties to perform, and each constituting a check upon 
the others. 

In the creation of a representative body for the purposes of 
legislation, there is then a two-fold design. The one is to ob- 
viate the inconveniences of a personal discharge of this power 
by the people; and the other, to filtrate it, and give it a judicious 
direction. But the mere delegation of this power is not consi- 
dered sufficient for the latter purpose. It has now become al* 
most an axiom in the constitution of a legislature, that it should 
consist of two branches, the one of which is more permanent 
and less responsible than the other: and this principle has been 
adopted in all the best forms of government. Without going at 
large into the reasons upon which this doctrine of constitutional 
law rests, it may be proper to advert to a few considerations, 
which come home to every understanding. Every well organized 
government is but a Bystem of checks and balances of power. 
Mn cannot safely be trusted with absolute power; nor can a 
community safely commit themselves even to their own uncon- 
trolled discretioni The L r rcat object in the constitution of go- 
vernments, is to make their leading powers so many antagonist 
muscles, each in a certain degree independent of the others, 
and each drawing against a preponderance of power in the 
others. Hence they have been subdivided into the three great 
branches of legislative, executive, and judicial powers; and the 
endeavor is made to preserve their distinct existence, as bras 
possible, by confiding their exercise to separate agents. Thus 
each branch is made to watch over and to check the encroach- 



478 THE ORGANIZATION OF THE SENATE. [Hist. View. 

mcnts of the others. The same objects are had in view, in the 
separation of the legislature into two branches. There is no 
power of the government which requires so much caution in its 
exercise as the legislative. The executive and the judiciary, have 
in o-eneral prescribed and definite duties to perform. The legis- 
lative, within its range, has no guide but its own discretion ; and 
it is therefore of the utmost importance, that this should be a well 
regulated discretion. Experience has shown, that nothing con- 
duces so much to this, as its separation into two branches. Each 
branch is vigilant and scrutinizing as to the acts of the other ; 
and would be useful in this respect, even if the branches were 
similarly organized. 

But their utility is greatly enhanced by giving to them, not 
only a separate, but also a peculiar existence. The will of the 
people should always be fully and distinctly communicated to 
the legislature, and should be brought to bear fully upon it. 
Hence the necessity of a popular branch composed of members, 
who are elected directly by the people ; who are elected by dif- 
ferent sections of the community, and therefore fully understand 
and represent the various wants and interests of these sec- 
tions ; and who are elected for short periods, and must soon re- 
turn to the people to account for the deeds done in their office. 
To give a judicious and steady direction to this will, and to guide 
it by the lights of experience, another branch has been consider- 
ed necessary; whose members do not so immediately represent 
sectional interests, and are therefore less likely to be swayed by 
these to the prejudice of the community at large ; are not so 
numerous as those of the popular branch, and are therefore se- 
lected with more caution, and act under a more concentrated 
responsibility; are elected for a longer period, and are therefore 
less likely to be swayed in the discharge of their public duties by 
considerations personal to themselves. Besides, by the dura- 
tion of their office, the members of such a branch must necessa- 
rily acquire an intimate knowledge of their duties, an acquain- 
tance with the constitution and laws, a familiarity with the forms 
and objects of legislative proceedings, fixed and uniform princi- 
ples of action, and, in the general, an aptitude for the discharge 
of their official duties, which can never be possessed by those, 
who are suddenly called together from the pursuits of private 



Chap. IX. J THE ORGANIZATION OF THE SENA 1 I . 479 

life for the purposes of legislation, and can scarcely become fa- 
miliar even with its forms, before their official character has ceased. 

These lines of demarcation indicate, what should be the dis- 
tinguishing characteristics of the two branches of the legislature. 
Some have contended that the one ought to represent property, 
and the other the people ; but besides the objection to such a 
distinction, as long since repudiated by our constitution, and as 
foreign to the nature of all our institutions ; it would manifestly 
accomplish but few of the objects of the division into branches. 
These are to be effected, not by a change of the object repre- 
sented, but by the duration of the office, and the change of re- 
sponsibility. The only benefit which would result from separate 
branches, varying only as to the basis of representation, would 
result from the dominion of different influences, operating as 
checks upon each other, and producing a legislation compounded 
of the proper influence of both. But the separation of the legis- 
lature into two branches has a higher aim. It seeks to impart to 
it, a full knowledge of the wants and interests of the people ; 
capacity to discern the measures by which these may be relieved 
or promoted, and wisdom and moderation in their application ; 
freedom from all partial, temporary, or selfish influences ; and an 
intimate acquaintance with the forms of proceeding. Such designs 
could not be effected by a mere change of the basis of represen- 
tation. 

In the State of Maryland, there are some peculiar reasons for 
the existence of such a branch as the Senate. It is scarcely pos- 
sible to constitute a legislative body, which, unchecked, would 
be more liable to hasty, capricious, mutable, and inefficient legis- 
lation, than our House of Delegates. The defect is not in the 
members, but in its ever varying constitution. There is no check 
in the Executive, which ia the creature of the legislature, and has 
no veto. Hence has, in some measure, resulted the \«ry peculiar 
character of our Senate: which renders il the most aristocratic 
legislative body known to the Union. There waa do checking 
power elsewhere; and it was perhaps deemed proper, for that 
reason, to infuse more of it into the Senate, than exists in Bimilar 
bodies, where there is the further check of the executive \<lo. A 

contrast of the characteristic differences of the two branches will 

exhibit, in strong relief, their different structures and tendencies. 



480 THE ORGANIZATION OF THE SENATE. [Hist. View. 

The Delegates are chosen annually : the Senators for five years. 
The Delegates are chosen directly by the people : the Senators 
by an electoral college, constituted upon the same principles as 
the house of delegates. The Delegates are elected for, and as 
the representatives of counties: the Senators are chosen from 
the State at large. Delegates to fill vacancies, are elected in the 
same manner as those originally elected: Senators to fill vacan- 
cies, are chosen by the Senate itself. Hence it appears that in 
their separate organization, the elective power is different; the 
tenure of the office is different; and the object immediately re- 
presented is different. 

There is no part of our State government which has been so 
much the theme both of censure and applause, as the organiza- 
tion of the Senate. If a popular anecdote may be received as 
true, its form when first proposed, elicited the unbounded admi- 
ration of the distinguished Samuel Chase, who is said to have pro- 
nounced upon it the very forcible eulogium, "'Tis virgin gold." 
Abroad and at home, it has been more commended than any 
similar body known to the States of the Union. Nor have these 
commendations been founded merely upon speculative views 
of its tendencies, but also upon its practical results. By 
the late Dr. Ramsay, its organization was considered one of 
singular excellence. "Ten of the eleven States, (he remarks,) 
whose legislatures, consisted of two branches, ordained that 
the members of both should be elected by the people. This 
rather made two co-ordinate houses of representatives, than 
a check on a single one by the moderation of a select few. Ma- 
ryland adopted a singular plan for constituting an independent 
Senate. By her constitution, the members of that body were 
elected for five years, whilst the members of the house of dele- 
gates held their seats only for one. The number of Senators was 
only fifteen, and they were elected indiscriminately from the in- 
habitants of any part of the State, excepting that nine of them 
were to be residents on the west, and six on the east side of the 
Chesapeake Bay. They were elected, not immediately by the 
people, but by electors ; two from each county, appointed by the 
inhabitants for that sole purpose. By these regulations, the Senate 
of Maryland consisted of men of influence, integrity, and abili- 



Chap. IX.] THE ORGANIZATION OF THE SENATE. 481 

tics, and 6iich as were a real and beneficial check on the hasty 
proceedings of a more numerous branch of popular representa- 
tives. The laws of the State were well digested, and its interests 
steadily pursued with a peculiar unity of system : while elsewhere, 
it too often happened in the fluctuation of public assemblies, and 
where the legislative department was not sufficiently checked, 
that passion and party predominated over principle and public 
good." (13) 

A similar eulogium will be found in the third number of the 
Federalist, in which Mr. Hamilton, after contesting its organi- 
zation with that of the Senate of the United States, remarks, "If 
the federal Senate, therefore, really contained the danger which 
has been so loudly proclaimed, some symptoms at least of a like 
danger ought by this time to have been betrayed by the Senate of 
Maryland; but no such symptoms have appeared. On the contra- 
ry, the jealousies at first entertained by men of the same descrip- 
tion with those who view with terror the correspondent part of 
the federal constitution, have been gradually extinguished by the 
progress of the experiment ; and the Maryland constitution is 
daily deriving, from the salutary operation of this part of it, a 
reputation in which it will probably not be rivalled by that of any 
State in the Union." 

In adducing these opinions, it is not our design to subscribe to 
them in their full extent, or to rest the system upon them. They 
are entitled to respect; but they are not authoritative. They do 
not preclude inquiry ; but they serve to show, that during our re- 
volutionary struggle, and down to the adoption of the Constitu- 
tion of the United States, the theory and results of this part of our 
constitution were equally approved. At the present day, it is gene- 
rally the subject either of indiscriminate approbation, or unqualified 
censure; and in this, as in most other instances, the line of truth lies 
between. " Keep the middle way," is generally the safe doctrine 
in such cases, yet it is not u ithout its difficulties. He, who thus 
places himself between opposite opinions, is often regarded as 
the common enemy of those who hold then | and they for a mo- 
ment forget their hostility, to meet and 1 1 1 1 1 1 lt I < ' in s common war- 
fare against bis doctrines. The shield of truth is then the only 

(31; Rami's History "f tfifl American Revolution, vol. 1st, 4-lJ. 

61 



482 THE ORGANIZATION OF THE SENATE. [Hist. View. 

protection left him, and the judgment of the future the only tri- 
bunal to which he can appeal. Yet he who enters upon such an 
examination, must not shrink from its difficulties. 

The prominent and characteristic features of the present con- 
stitution of the Senate, are — The intervention of the Electoral 
college: The selection of the senators from the State at large; 
The duration of their office: and the Senate's right to fill vacan- 
cies. The objects and tendency of these it will be proper briefly 
to examine. 

In adopting the peculiar mode of electing our Senate, the 
framers of our constitution appear to have had in view two 
prominent objects; the equal influence of the counties in its 
choice ; and the selection of the senators, as the representatives 
of the State at large and not of particular sections. The pre- 
sent was the only system, by which these two objects could have 
been concurrently accomplished. If the senators were elected 
for counties or cities, they would, by the very nature of their 
election, have stood in the relation of representatives to such 
counties or cities : and no system of election by general ticket 
could have been devised, which would have preserved both these 
objects. By the substitution of an electoral college, in form 
the mere miniature of the house of delegates, each county was 
insured an equal influence in selecting senators for the whole 
State, which was considered tantamount to a specific equal re- 
presentation in the Senate itself: and, at the same time, the per- 
sons selected by the college were made, by the very manner of 
their choice, to regard themselves as the representatives of the 
whole State, or at least of their respective shores. The system 
was also recommended by the advantages of an indirect election 
by representatives, who would discharge this duty under the eye 
of the whole State, and under a high sense of responsibility to 
the community which they dared not disregard. Originally esta- 
blished upon such considerations, the present organization of 
the Senate is still sustained by them in all their original force ; 
and cannot be destroyed, without departing from them. The 
change of the system would not be a mere alteration of its 
modes, but an abandonment of the principles of its formation: 
and hence it is necessary to consider in connexion with any pro- 



Chap. IX.] THE ORGANIZATION OF THE SENATE. 483 

position for change, the value of these principles, and the con- 
sequences of their destruction. 

The abolition of the Electoral college, and the allotment of 
Senators to the several counties and cities in the ratio of their 
respective representations in the house of delegates, will of ne- 
cessity render the constitution of our Senate, a mere copy of 
that of the house of delegates in all but the duration of the olhce : 
and thus the ellicacy of the two houses, as checks upon each 
other, will be much impaired. In fact, there will remain no 
checking principle, but that derived from their separate existence. 
Organized in the same manner, and subject to the same species 
of responsibility, they will be governed by the same influences. 
There will be nothing but a representation of sections; and, per- 
haps, as its consequence, a legislation ever fashioned by section- 
al jealousies and prejudices. Hence we find that Mr. Jefferson, 
who was an acute observer of the principles of government, has 
characterized, what he terms the homogeneous structure of the 
two houses of Assembly, under the old constitution of Virginia, 
as one of the greatest defects in its organization. "Being chosen 
(he remarks,) by the same electors, at the same time, and out of 
the same subjects, the choice falls of course on men of the same 
description. The purpose of establishing different houses of 
legislation, is to introduce the influence of different interests or 
principles. We do not, therefore, derive from the separation of 
our legislature into two houses, those benefits which a proper 
complication of principles is capable of producing, and those 
which alone can compensate the evils which may be produced 
by their dissensions." (14) Yet the structure, upon which he 
thus remarks, did not render the two houses of that Assembly as 
similar as those of our Assembly would be, if the alteration we 
are considering were accomplished. There the senators repre- 
sented districts, and the delegates counties, although the qualifi- 
cations foi the voters were the same: but here in tho case sup- 
posed, they would be elected by the same persona and for the 
same sections. The conformity between the two branches of 
the legislature would then be more exact under our constitution, 
than under the forms of state governments around us, which are 

(14) Jefferson's Notes on Virginia, 122. 



484 THE ORGANIZATION OF THE SENATE- [Hist. View. 

appealed to as examples to sustain the proposed change: for 
under all of the latter, the members of the less popular branch 
represent more extensive sections of the State. If then we 
admit, what all the forms of our republican governments seem 
to assert, that the division of a legislature into two branches 
is instituted to make them checks upon each other, there is 
no middle ground to occupy. Either the doctrine that such 
checks are necessary is erroneous; or the checks should be effi- 
cient. Yet by the continuance of our two houses of Assembly, 
we would admit the doctrine ; and by their similar structure, we 
would defeat its application. 

The difference between the term of office of the Senator and 
that of the Delegate has been sometimes adverted to, as if by 
such a distinction all the purposes of the separate existence of 
the two houses were answered. The senator, it is said, being 
elected for a much longer period, will be subject to none of those 
momentary influences, or apprehensions of the loss of office, 
which might deter him from the fearless discharge of his public 
duties. Such notions spring from a misapprehension of the na- 
ture and objects of such a check. The mere diminution of re- 
sponsibility is not a check in legislation. It consists in the ex- 
istence of different responsibilities, and different influences, so 
well balanced against each other, as to give to each its due ope- 
ration, and to deny to all an undue preponderance. Like me- 
chanical powers operating from different quarters upon the same 
object, and giving it a direction, between such opposite impulses, 
yet partaking of the motive power of all ; the various interests 
in society are thus brought to bear upon general legislation, so as 
to direct it between their peculiar purposes to the general wel- 
fare. But in legislative bodies, such checks not only render the 
different interests in a community mutual and beneficial restraints, 
but they are also the safeguards of the people themselves against 
their own representatives. The two branches compose two dif- 
ferent classes of responsible agents, entrusted with the same ob- 
jects, and deriving their trusts under different circumstances and 
different degrees of responsibility, yet controlling them only by 
their concurrent operation. 

Turning from these general considerations to those which be- 
long to the peculiar condition of this State, all will perceive at 



Chap. IX.] THE ORGANIZATION OF THE SENATE. 485 

once the particular influences, which principally war against the 
general welfare, and most require the interposition of checks. 
The most careless observer of our Stale government, must have 
remarked its tendency to create and perpetuate sectional divi- 
sions, ever carrying in their train sectional jealousies and preju- 
dices. The very bounties of Providence have proved causes of 
separation. The noble bay, which intersects our State, has al- 
most become the line of demarcation between distinct people 
and governments; and every variety of local interests, every pe- 
culiar advantage of situation, have been brought into requisition 
to scatter dissensions amongst us. Plow well they have accom- 
plished it, in rallying shore against shore; counties against coun- 
ties; Potomac interests against Susquehanna interests, and 
Eastern shore interests against both: county jealousies against 
Baltimore influence; and Baltimore apprehensions of county 
enmity, let the past transactions of our legislature determine. 
If ever there was a State, in which local interests have operated 
to the general prejudice, it is the State of Maryland. All her in- 
stitutions, however general in their purposes, are but so many 
representations of sections. Her Senate, as at present organiz- 
ed, approaches more nearly to a state representation than any 
other: yet even here the shore distinctions predominate. It 
therefore becomes our people to weigh well the consequences, 
which may result from the destruction of the only check in our 
government upon these, its unquestionable tendencies. 

It must be considered, that however different in its structure, 
the Senate derives its existence from the same source as the 
House of Delegates. The two houses are merely different modi- 
fications of the same right of representation. The Bame peo- 
ple elect, the one to represenl their local interests, and the other 
to direct these with a due regard to their State interests. The 
latter they have accomplished in the only mode consistent with 
their county ri_dit-, by devolving the -election of senators upon 
responsible elector- of their own choice, precisely as the elec- 
tion of the governor is cast upon the house of delegates: and if 
it be objected thai this indirect mode of election is improper, the 
objection equally requires, that the Governor should be elected 

by the people. Adopting this i le, and directing the selection 

of the senators without respect to county division*, it was the 



486 THE ORGANIZATION OF THE SENATE. [Hist. View. 

purpose of our constitution, that the senator should represent 
and protect State interests; that he should feel and respect the 
popular will, but not fear its hasty impulses ; and that he should 
be subject to a responsibility which, like the kindly influences of 
the sun, is too remote to inflame, and yet near enough to vivify 
and impart creative power. If these purposes be accomplished, 
the Senate is then, what it was intended to be, a check: if not, 
the defect lies, either in the organization of the electoral college, 
or in the attributes of the Senate : and these we now propose to 
examine. 

In the constitution of such a body as the Electoral college, the 
great desideratum is the exclusion of all sinister influences, which 
might seduce the members from their duty to the public. In this 
as in every other agency, much depends upon a proper sense of 
accountability on the part of the agent: and this is regulated by 
the degree of his responsibility, the consequences of disregarding 
it, and the speediness of their operation. In the case of an elector 
of the Senate, all these ordinarily concur, in the most favorable 
form, to promote the faithful discharge of his duties to his imme- 
diate constituents. He returns, as soon as the election is con- 
cluded, to the walks of private life : and is brought at once under 
the full operation of public disapprobation, if he is deemed to have 
neglected the public interests, or to have prostituted his official 
powers to the promotion of his own selfish designs. His office 
has ceased : and with it, all opportunities of employing official 
influence, to palliate offence, or mitigate the censures of his con- 
stituents. This responsibility, however, is often partial in its ope- 
ration. He selects for the whole State : and yet the manner of 
his election often leads him to conclude, that he is not responsi- 
ble to any but the people by whom he is elected. Still this is 
not the result of the constitution, but of his own imperfect sense 
of duty. The constitution enjoins, and his oath of office requires, 
that he should select persons " of the most approved wisdom, 
experience, and virtue:" and hence he is permitted the widest 
range in his choice. If the duty thus resting upon such high 
moral sanctions be disregarded, the consequences to him who 
violates it, are at least as punitive as any which could flow 
from any other system. Yet at last, the most effective 
safeguard of official purity, consists in the exclusion of temp- 



Chap. IX.] THE ORGANIZATION OF THE SENATE. 487 

tations. Men will not forsake the path of duty, if they can- 
not thus promote their selfish interests. In the exercise of elec- 
tive power, the station of the elector should never he the instru- 
ment by which he may advance himself to office. Here our present 
system is defective. The elector of the Senate is eligible as se- 
nator : and in the latter office he may place himself by the mere 
influence of the former. Thus temptations are held forth to make 
the obtention of the latter, the design in seeking the former : and 
when they suggest such a purpose, they tend to lead away the 
elector from the consideration of his public duties, and to prepare 
him for any arrangement which will accomplish his own election. 
There is, however, one consequence of the election of the 
Senate by an electoral college, which all must deplore. The 
wholesome exercise of legislative power is always promoted by 
the liberty of difference, both in opinion and feeling, amongst 
the several members of a legislative body. This liberty should 
exist to such a degree, as to induce a full and impartial investiga- 
tion of the merits of every question. Collision in sentiment is 
necessary to elicit this. As with the pool of Bethesda, the 
troubling of its waters was required to impart to them a heal- 
ing efficacy: so with legislatures, the agitation of opinion 
is necessary to the purity and propriety of their measures. 
There should never be any general or dominant feeling or 
principle of action, under which they act in blind submission, 
and without reference to the merits of the question proposed. 
The consequences of such submission are constantly witnessed, 
in the operations of our State and national governments : and 
they cannot be obviated so long as parties exist. Legislatures 
will become instruments in the hands of a party, for the promo- 
tion of party purposes. In our State legislature, during the al- 
ternate ascendency of the two great parties, which formerly di- 
vided our State and country, we have seen each party, at moments, 
iiiL r theii decisions on questions of right, solely upon the doc- 
trmes of political expediency. In our House of Delegates, the 
operation of these feelings was always mitigated by the manner 
of its constitution. The voice of the minority was always heard 
in it. It- members did not, aa tho e of the Senate, all spring from 
the same creative power. They came severally from the counties, 
and each bore the imprest of the general feeling ofthe count] he 



488 THE ORGANIZATION OF THE SENATE. [Hist. View. 

represented. In that house the propriety of measures was dis- 
cussed ; because there was always conflict of sentiment. But not 
so in the Senate. The party which prevailed in the electoral 
college, always gave to it its own political character exclusively. 
The test of qualification was, " will he play the partisan?" The 
Senate was sometimes made the receptacle of political invalids 
and broken down politicians, whose influence it was expedient 
to revive, or whose partisan services it was convenient to reward. 
Thus the Senate being entirely of one political complexion, be- 
came a mere political engine : and party expediency was, from 
the very manner of its constitution, the guide to its duties. Had 
the Senate been elected directly by the people, or by electoral col- 
leges raised for each county or for districts, the same feeling might 
have governed, but still the minority would have been represented 
and heard in the midst of it. If, however, the duration of the 
office of senator had corresponded to that of the delegate, the total 
want of a representation of the minority in that body would not 
have been so objectionable. But they were elected for five years. 
The feeling under which they were elected, might be, and often 
was, the feeling of the State for but a very short time after their 
election ; and long before they went out of office, they were the 
exclusive representatives of a minority. In the expression of the 
sentiments of the people, in their elections, and in their legisla- 
tive acts generally, they were sometimes found to a man in direct 
and wilful opposition to the well ascertained will of a majority of 
the people of the State. These days have not passed by. Party 
feeling is again upon us, and party divisions again pervade our 
State. They have returned, to bring with them in their train the 
same consequences, or at least a liability to them. The Senate 
will again be elected under the influence of the dominant party, 
who will give to it the same exclusive political character, and the 
same dull and vapid existence; and it may again become the ex- 
clusive representative of a minority. 

These tendencies might, perhaps, be obviated by an arrange- 
ment of the Senators into classes, according to the manner in 
which the Senate of the United States is organized ; so that 
these classes should retire at different periods : and thus par- 
tial vacancies might be made to occur at least once in every 
two years, to be filled by a new electoral college. If the Senate, 



Chap. IX] THE ORGANIZATION OF THE SENATE. -l-«) 

could be organized so as to correct these tendencies, one of the 
principal objections to its right of filling vacancies in its own 
body would then disappear: but as at present constituted, this 
power puts the stamp of perpetuity upon its original form and 
character. By its aid, as the electoral college leaves the Senate, 
so the people find it at the end of its term. Such is the joint 
result of the election by the college in the first instance, and of 
the elections by the Senate to fill vacancies, that not only may 
not the breath of popular will blow too rudely upon that body, 
but it is not even admitted to ventilate it. Under these opera- 
tions, it may remain like an Egyptian mummy, embalmed in the 
spirit of the college which gave it birth : and whilst every thing 
around it, has changed, has progressed, and has adapted itself to 
the temper and circumstances of the period, it remains wrapped 
in its swaddling clothes, rigid in the form impressed upon it at its 
birth, and retaining all its infant features. 

It must be evident, also,- that the great hold which the people 
have upon those, who represent them in the exercise of the elec- 
tive power, is greatly weakened, if nut entirely destroyed, in the 
election of senators by the Senate. Every form of government is 
chimerical, and fitted only for the Golden Age and an Utopian 
commonwealth, which, for the proper exorcise of delegated 
power, reposes implicitly upon the virtue and intelligence of the 
delegate. He must be checked by proper apprehensions, and 
impelled by proper hopes : and these can exist only where there 
is a proper sense of accountability. Yet from the manner of its 
Organization, there is little to impress upon the Senate the con- 
viction, that the office which they bestow is not their gift, but a 
public tru-t. Nor i- this manner Of appointment redeemed by 
the tendencies anticipated by the framers of our constitution. It 
was expected thai persons, themselves -elected for their high 
qualifications, were peculiarly fitted for the selection of their fel- 
lows. Yet, although men may begef like as an involuntary con- 
sequence, they will Dot always voluntarily appoint like. They 
cannot, in general, bear "a ri\al near the throne:" and much 
less will they bring a rival near it. In a small body, such ai 
our Senate, its influence will generally bo wielded by a few ,who 
may not f|e«ne to introduce a new member, to control it by his ta- 
lents and virtue : and in the general, MCh member will be unwil- 

83 



490 THE ORGANIZATION OF THE SENATE. [Hist. View. 

ling to diminish his relative standing and influence by the capa- 
cities of those whom he may elect. The character of the elec- 
tions heretofore made by the Senate, has not realized these views ; 
but has rather given additional sanction to this mode of filling 
vacancies. Yet, although the virtue and intelligence of the Senate 
have hitherto, in a great measure, counteracted these tendencies, 
they exist and will yet be felt. 

Like every other human institution, the structure of the Senate 
has, therefore, its defects. Some of them are inseparable from it: 
and to such it is but fair'to put in contrast, its peculiar merits and 
advantages. Others might perhaps be removed, by a slight change 
in the form, not conflicting with its governing principles : and to 
these, remedies should be applied. But in abandoning this organi- 
zation for one corresponding to that of the house of delegates, we 
shall destroy its efficacy as a check, and break down the only barrier 
against sectional and partial legislation. If change should be resolv- 
ed upon, the prejudicial results of an uniformity in the organiza- 
tion of the two houses would be, in some degree, obviated, by elect- 
ing the senators for districts, composed of two or more counties, so 
as at least to produce a different combination of sectional interests 
in the two houses : and would be wholly removed, by making 
one of the houses a representation of population. The present 
constitution of the Senate is the only apology for a system of 
representation, by which a minority of its people have at all times 
the power to control the government of Maryland. It is due to 
the present form to remark, that from the adoption of the consti- 
tution to the present day, our Senate, in the intelligence, experi 
ence, and virtue, which it has embodied, may be proudly contrast- 
ed with any legislative body of the Union. If by its fruits it is to 
be judged, it will not fear to come to judgment : and thus recom- 
mended, it should not be lightly abandoned. In departing from 
it, there is one safe alternative, in organizing the Assembly 
so as to make one house the representation of counties, and the 
other of population. Such an organization rests upon republi- 
can principles : and its results are manifest in the experience of 
our sister States. But all else will be vague and dangerous experi- 
ment. The rule " to try all things, and hold fast to that which is 
good," will answer better in every thing else than in governments, 
where the people always pay the cost of the experiment. 



CHAPTER \. 



THE POWERS OF THE GENERAL ASSEMBLY. 

The General Assembly of Maryland was instituted for the ex- 
ercise of legislative power : but as the immediate organ of the 
public will, it is clothed with various rights, not pertaining to le- 
gislation, and in some instances purely executive in their nature. 
Hence we distinguish ils powers into legislative and incidental. 
In examining its legislative power, we shall consider — (1) The 
sources and efficacy of its restrictions — (2) The particular restric- 
tions, under the State government , relative to the nature of this 
power — (3) Those protective of constitutional institutions — (4) 
Those flowing from the declared rights of the citizen — (5) Those 
relative to the manner of legislation. 

(I) The sources and efficacy of the restrictions upon its legisla- 
tive power. 

The legislative power of the General Assembly, whilst it con- 
forms to the objects of human government, may be said to be ab- 
solute and uncontrolled over all persons and all objects within 
the limits of the State, where it is not restricted or excluded by 
the Bill of Rights and Constitution of Maryland, or by the Consti- 
tution of tlm United States. This is not a Boleeism. There is a 
material difference between a power embracing all thai is no! de- 
nied, and one extending only to what is expressly granted. The 
government of the United States is of the latter description: 
and flfeerefere it- rarious departments can exercise only the powers 
expressly granted, and Bucfa others as are oi cessarily incident to 
the fall enjoyment and exercise of the expre powers. The State 
government, on the other hand. p< plenary powers, limited 

only by it- nature and express restrictions. This distinction 
springs from the different oatnre and objects oft! rnraenta. 

The latter was called up oul of a state of nature, and established 



■V:>1 mr POWERS OF THE [Hist. View. 

over the people of Maryland, for the general purposes of human 

oo\ eminent : the former w. as ereoted o\ or distinct and independent 
States, to concentrate their energies tor their general welfare and 
defence, and to modify or control their several governments only 

so far as it was necessary for this endi Hence oui State Consti- 
tution and Bill of Rights, as relating to a government of general 
powers, have not undertaken to define the cases to which the le- 
gislate o power shall extend, bu thave onl] designated certain cases 

to which it shall not extend, ami provided tor its exercise. The 
power is derived from those instruments under a general grant : and 

hence, when it was observed by the late General Court, "that 
the legislature could not rightfully exercise any power but what 
is derived from these," they explain this observation by the 
further remark, " that although, in their opinion, the authority o\ 
the General Assembly was limited, yet as the powers ot" legislation 
were not particularly or specifically defined, but conferred under 
a genera) grant, they are subject only to such limitations as are 
contained in our form of government, and the constitution of 
the United States." ^ 

Yet the legislation, under every government, ought o{ course 
to be regulated and limited by the nature of that government, and 
the objects for which it was formed. These prescribe the proper 
sphere in which it ought to move, and mark out the orbits of its 
various powers and duties : and whenever it departs from them, 
the subjects of a government thus perverted, may rightfully return 
to first principles, and remodel or shake it o\Y. The true object 
of all government is the protection and security, of the person 
and property of the subject. In a state of nature, every individual 
is open to the attacks of all. and has but his own energies to resist 
them : and hence men have combined into communities, so as to 
ensure to each, for his defence and the protection of his proper- 
ty, the power of all his associates. This is the " rationah" of hu- 
man governments: although in many it is wholly disregarded; 
and in others, much obscured by fraud, force, or accident. Their 
object being, therefore, to knit together the force of the whole 
society for the protection of the particular rights of each member, 

; l ) l«t N.-irr. and Johns. 343 and ?46. WhUtirjgton vs. Polk. 



Chap. X.] CENTUM. 18SEMBLT. 493 

ui subservience to the general interest, il clearly indicates a limit to 
their powers, and a restraining reason in their exerci e. The] are 
all at bottom social compacts, which the parties to them are not 
eornpefc ui i" invesl with all power, and by which they have not 
in fact surrendered all Datura! rights. 

It r< «]inr< - Imt little reflection upon the extenl of natural 
righto, f> convince thai they are nol uncontrolled. They arc all 
in subjection to the natural and revealed law of God; and the 
social rights, which are formed oul of them, and constitute what 
is called " government," must of nec< ■ lity be in like snbordina* 
tion. A government, with the fullesl powers, cannol therefore 
lawfully order an act to be done, which is contrary to the essen- 
tial principles of the natural or revealed law of God: hecause 
they, who established it, could confer no such power. It is also 
evident, that every man mu-t be presumed to have entered into 
society for the protection of his person and property; ami that 
he carries with him, even from the state of nature, the right to 
'.• here the laws of society cannol interpose in time 
to shield theiii from lawless violence. If therefore an act of Assem- 
bly should expree i the Bubject, the right to defend the 
person against the assaults of the murderer or the brutal violator 
r the property from the grasp of the highway rob- 
ber, it would be a manifest departure from the fir-t principles of 
government. So ociety i- formed to preserve the rights 
of property, il can properly impair or control these, only so far 
as it is requisite for the public welfare or defence or necessities; 
and even tin- power should b< d, with a due regard to 
the obligation of each member to contribute rateably for these 
purposes. The express doctrine of some of the state constitu- 
tions, "that private property '•hall he taken only for public uses, 

and then only upon Compensation," doe- but declare an inherent 
prin ' of legislation, which would arbitrari- 

ly take away the property of an unoffending citizen, ami give it 
to another for In- private D I n apply it to public uses 

without making or providing for compensation, are therefore in 
dnect ronilirt with tin- nature and ends of government. I 

will suffice to illustrate the general character of the na- 
tural rights and obligations, which follow men from n Stall 



49 i THE POWERS OF THE [Higt. View. 

nature into society, to control human governments or supply 
their deficiencies. (2) 

But whilst the justice of such restrictions, and the obligation 
to respect them, are admitted, their application presents another 
and more difficult question. Limitations of power properly so 
called, carry with them a sanction and mode of enforcing their 
observance, known to, or established by the government itself; 
and are distinct from those principles of right, which can be re- 
stored only by its subversion. Are these restrictions of natural 
law, or these reservations of natural rights, as such, limitations of 
this character? The full discussion of this question would lead 
us too far from the original purposes of this work; and would at 
last be of little practical utility. Were we even for a moment 
to admit the supposition, that the Assembly would wilfully vio- 
late such obligations ; the express provisions of our government 
have so fenced about the rights of the citizen, and have clothed 
them with such securities against encroachments, that usurpa- 
tion upon them can rarely, if ever, be practised. It is a well esta- 
blished doctrine of the constitution, that in construing and apply- 
ing acts of legislation, no violation of natural justice shall ever 
be presumed to have been in the contemplation of the legisla- 
ture, and that every intendment shall be made against it. Strik- 
ing illustrations of this doctrine may be collected, from the case 
of Dash vs. Van Kleeck, decided by the Supreme Court of New 
York, in which the retrospective efficacy of statutes was most 
thoroughly investigated and ably discussed; (3) and the case of 
Ogden vs. Blackledge, decided by the Supreme Court of the 
United States. (4) These, and the many similar cases in our 
courts, although relating to questions somewhat different, will 
warrant the general remark, "that statutes ought never to receive 

(2) See the very forcible remarks of Judge Chase, upon this subject, in 
3d Dallas, 383 ; those of Judge Patterson, in Vanhorne's Lessee vs. Dor- 
rance, 2d Dallas, 310, and also 2d Rutherforth's Institutes of Natural Law, 
47 ; by which the doctrines of the text are fully sustained. Legislators, 
who are so fond of interfering with private rights, may employ themselves 
usefully in reading the 21st chapter of the 1st Book of Kings. 

(3) 7th Johnson's New York Reps. 477, and particularly the remarks of 
Chief Justice Kent, in page 502. 

(4) 2d Cranch, 272. See also 1st Bay's South Carolina Reps. 179. 3d 
Dallas, 386, Calder vs. Bull. 3d Cranch, 399, U. States vs. Heth. 



Chap. X.] GENERAL ASSEMBLY. 495 

a construction, which will work a violation of natural duty or re- 
served natural rights, or will conflict with the obvious ends of 
government, if susceptible of any other reasonable construction, 
or if they can otherwise have a reasonable operation." This is 
a rule of construction of common law origin, familiar to the En- 
glish courts, and prescribing the extent to which they can go in 
controlling acts of parliament: for' notwithstanding the dicta of 
such distinguished judges as Coke, Hobart, and Holt, the power 
of those courts over such acts can go no further. (5) 

The application of this rule, so as to take away the unreason- 
able operation of statutes, has been generally the limit of judi- 
cial interference, in this country, with legislation ordaining what 
is contrary to reason and natural justice where there are no ex- 
press constitutional restrictions : and by high authority, it has been 
declared to be the utter barrier of judicial power in such cases. 
"If (says the late Judge Iredell,) the legislature of the Union, or 
the legislature of any member of the Union, shall pass a law 
within the general scope of their constitutional power, the court 
cannot pronounce it void, merely because it is in their judgment 
contrary to the principles of natural justice. The ideas of natu- 
ral justice are regulated by no fixed standard: the ablest and 
purest men have differed upon the subject; and all that the court 
could properly say, in such an event, would be, that the legisla- 
ture, possessed of an eqifel right of opinion, had passed an act 
which in the opinion of the judges, was inconsistent with the ab- 
stract principles of natural justice." Yet the contrary doctrine ap- 
pears to have been held by Judge Chase in the same case ; and in 
some of the states, has been sanctioned and acted upon by the 
courts. (6) In one of the more recent of these cases in the Supreme 
Court of New York, where, in justification of an alleged trespass, 
the def-nrln.it pleaded ■ dcenae to enter under one of the canal acts 
and for purposes connected with the canal improvements, it was 

(5) 1st BlactatoneH Coram. 91 ; ana christian's note, 2,1 Dallas, 308. 

(6) Caldcr w. Bun, 3a Danes, 399-on the other hand, Me Judge Chase's 
opinion, in same case ; that of lodge Patten*, in the case of Yanhornc's 
Zmt*\ Domnee,9a Dallas, 304. 20th Johneon'i NewYori Rape. 106. 

id Bay's Booth Carol * ». * »«" **« u Ba *' 38 > and ******* 

the remarks of Waties, J in 3d Bay, 58. 



490 THE POWERS OF THE [Hist. View. 

objected to the efficacy of the act, that it made no provision for 
compensation, and the objection was sustained by the court. In 
delivering its opinion, Spencer, C. J., puts out of view the restric- 
tions of the Constitution of the United States relative to taking 
private property for public uses, as applying only to the national 
government; and those of the recent Constitution of New York, 
as not then operative. "But these, (he remarks,) are both de- 
claratory of a great and fundamental principle of government; 
and any law violating that principle must be deemed a nullity, as 
it is against natural right and justice." (7) The decision in this 
case was removed to the Court of Errors, and there reversed : yet 
even the opinion of this court, as delivered by the Chancellor, 
does not deny, but rather affirms the general principle asserted 
below. It was considered by it, that the omision of the act in ques- 
tion to make compensation was supplied by antecedent acts; and 
that even if it were not, it would be carrying the principle too far 
" to hold a public officer a trespasser, who enters upon private pro- 
perty by virtue of a legislative authority specially given for a pub- 
lic purpose." Yet it is expressly declared by that court, that there 
is in such cases an equitable and constitutional title to compensa- 
tion, which imposes an absolute duty on the legislature to make 
provision for it, where they authorize an interference with private 
property; and they say further, "that perhaps in such cases, the 
exercise of the power might be judicially restrained, until an op- 
portunity was given to the party injured, to seek compensa- 
tion." (8) 

For precedents to sanction such an exercise of judicial power, 
we would look in vain to the country from which we have deriv- 
ed most of our legal doctrines. Much has been said of the Eng- 
lish Constitution : and from the application of the term, we might 
sometimes infer, that under the English government, as under 
our republican governments, there are certain fundamental prin- 
ciples and institutions, and reserved powers, over which parlia- 
ment has no control, or which are at least above the reach of 
ordinary legislation. Yet in this point of view, England has no 

(7) 20th Johnson's New York Reps. 106. 

(8) Same, 744. 



Chap. X] GENERAL ASSEMBLY. 497 

constitution. Certain established principles of government, and 
long enjoyed and therefore prescriptive privileges, may be styled 
" The Constitutional rights of the English people:" yet there are 
none so sacred, as not to be within the reach and at the mercy of 
every Parliament of Great Britain. But in our country, the so- 
cial compact and its restrictions, arc not merely the speculations 
of philosophy, or the fictions of law. They are living, and ever 
active, in all our state constitutions. In these are embodied, the 
standards of public and private rights, and the elements of pub- 
lic power. From them all authority is derived, and by them must 
its exercise be justified. To apply to them the language of our 
Court of Appeals, in reference to our own State government, 
"they are the immediate work of the people in their sovereign 
capacity, and contain standing evidences of their permanent 
will. They portion out supreme power, and assign it to diffe- 
rent departments, prescribing to each the authority it may ex- 
ercise, and specifying that from the exercise of which it must 
abstain. The public functionaries move then in a subordinate 
capacity, and must conform to the fundamental laws or prescripts 
of the creating power. When they transcend defined limits, 
their acts are unauthorized, and must necessarily be viewed as 
nullities." (9) In conformity with these principles, public acts, 
which transcend the express limits of our constitution and bill of 
rights, air void, and will be so pronounced by our courts. These 
niMruments are acknowledged standards, to which the courts 
may bring every exercise of power; and in the application of 
them, where is the distinction between acts which conflict with 
their express declarations, and those which are at war with their 
whole nature ami ends ? The latter are continually brought into 
ami considered by the courts, in construing and applying 

Constitution ami Bill of Rights: ami why may they not also 
be applied to acts manifestly violating the fundamental and un- 
changeable principles of natural law? Where natural rights have 
been recognized by our laws, or tin • decisions of om* courts, they are 
surely entitled to all the immunities of such rights. The objection 

i their uncertainty then ceases; and the court.", in protecting 

(9) 1st Gill and Johnson, 472. 



498 Tlffi POWERS OF THE [Hist. View, 

them against usurpations, do but declare what has been previously 
admitted, that they were not merged in the government. The right 
of self defence is one of this description. It has been constant- 
ly acknowledged and acted upon, not, in our apprehension, as a 
common law principle, but as an admitted natural right : and if 
it were expressly denied by an act of Assembly, it would be diffi- 
cult to maintain, that the courts could not protect it even against 
such a violation. The subject admits of many other illustrations 
which it is not necessary to pursue. It relates to questions not 
likely to occur in our experience: but it involves considerations, 
which our legislature should have constantly in view. The ob- 
jects of government, and the impartial dispensation of its bene- 
fits and burdens, are to it rules of action which, although laws 
may not enforce, yet duty enjoins. 

The express restrictions upon the powers of the General Assem- 
bly flow, either from the Constitution of the United States, or 
from our State Constitution and Bill of Rights. Those arising from 
the former apply to State authorities generally; and we shall 
therefore defer their consideration, until we come to treat of the 
adoption and obligations of the Federal government. Before 
considering those incorporated in our form of State government, 
it may be proper to premise a few remarks upon their general 
nature and efficacy. 

Our State Constitution and Bill of Rights, are the repository of 
the fundamental principles and institutions of our government: 
and if they had not expressly reserved the power of amending 
or altering them, it could not have been exercised under the go- 
vernment, but only by the people in their sovereign capacity. 
Such is the character of several of the State Constitutions, which 
of course can only be amended by special conventions consti- 
tuted by the people for that purpose. Our constitution has, how- 
ever, reserved this power, and prescribed a mode of exercising it, 
which was intended to obtain the results without producing the in- 
convenience of special conventions, and perhaps also to perpetu- 
uate the equality of county representation, and the relative politi- 
cal power of the two shores. It enacts, that no part of the Consti- 
tution or Declaration of rights shall be altered or abolished, ex- 
cept by a bill for that purpose passed by the General Assembly, 
and published at least three months before a new election of 



Chip. X.] GENERAL ASSEMBLY. 499 

delegates, and confirmed by the General Assembly at the session 
next after such new election; so that the confirming bill inusi 
always be passed, if at all, by a new house of delegates, elected 
immediately after the proposed amendment is submitted to the 
consideration of the people, and at its first session. But when- 
ever such bills propose alterations or amendments in any part relat- 
ing particularly to the Eastern Shore, it is further necessary that they 
should be passed in the first instance, and afterwards confirmed, 
by the votes of two-thirds of all the members of each house of 
Assembly. (10) Such being the extent of these restrictions, it 
is scarcely necessary to remark, that all laws not thus passed 
and confirmed, which violate or conflict with them, are abso- 
lutely null and void so far as they do violate or conflict with 
them, and will be so declared by our courts. For many years 
after the adoption of the constitution, the power of the courts 
to declare such acts void was not placed beyond the reach of 
doubt: (11) but it was at length fully affirmed by the General 
Court, in 1S02. (12) From that period until the present, it has 
remained unquestioned; and has been twice exercised by our 
highest court. (13) The necessity of such a power residing 
somewhere, must be manifest to all: for without it, constitution- 
al restrictions would have been nullities. Existing as a mere 
check, it could not have been so properly entrusted to any of 
our public authorities as to the judiciary, for its independent and 
impartial exercise. But it belongs to our courts, not as a power 
to control, but as a duty to be performed. To the authority of 
the constitution and bill of rights, as the fount of our govern- 
ment and institutions, and the supreme law of the land, they are 
bound to defer; and they cannot in consistence u it li their otlicial 
obligations, give efficacy to unconstitutional lawa. (14) 

llif particular restriction* under the 8tati government, rela- 
tive to the naturv. of this power. 
It is now almost an axiom m the philosophy of governments 

(10) Const, art. 59. 

(U) Sue 3dllarr. ft M.-ll. DIJ, 108 and 1 

(13) Whittington w. folk, 1st Harr 8tJi bni 9 

(13) DaahieU tele, 6th Hair, fc Johni i I Crane w. Me- 

ginnis, 1st (Jill & Johns. 464. 

(14) 1st Gill &John». 472 ; anH 2d Hav's Stuth Carolina Ri , >" 1 



500 THE POWER OF THE [Hist. View. 

that the chief safeguard of liberty under them, consists in the 
separation of the three classes of powers, the Legislative, the 
Executive, and the Judicial. This principle is recognized by 
most of our State governments, as one of vital importance : and 
rests upon reasons familiar to the American people. It is our 
purpose, in that part of this work which treats of the organization 
of the supreme executive power, to investigate the origin and 
objects of this principle in republican governments, and to inquire, 
if it demands not only a separate exercise of these powers, but 
also the distinct and independent organization of the departments 
by which they are severally administered. It will suffice here to 
remark, hat their distinct exercise is fully secured by our Bill of 
Rights, which declares " that the legislative, executive, and judi- 
cial powers of government, ought to be forever separate and dis- 
tinct from each other." (15) 

This doctrine does not refer to the organization of these de- 
partments of power : nor is it a mere recommendation to them, to 
observe the purposes of their separate existence. It is a positive 
inhibition, referring directly to the exercise of these three classes 
of powers, and restraining, by all the efficacy of the constitution, 
those who administer any one class of them from attempting to 
exercise the powers which belong to either of the others. Nay, 
more ; it denies to the legislature, the right to confer upon the ad- 
ministrators of legislative, executive, or judicial power, any au- 
thority not belonging to the class of powers, for the exercise of 
which they were created : and therefore, any act of Assembly, 
which exercises judicial or executive power, or confers upon the 
Judiciary, either legislative or executive power, or upon the Execu- 
tive, either judicial or legislative power, is absolutely void, and 
will be so declared by the courts. These doctrines are fully sus- 
tained by the recent decision of the Court of Appeals, in the case 
of Crane vs. Meginnis, at June term, 1829: in which a section 
of an act of Assembly was. declared unconstitutional and void, 
because it was an exercise of judicial power. (16) 

Hence the General Assembly (except in the cases permitted by 
the Constitution, which will appear at the close of this chapter,) 
can exercise no power but what is legislative in its nature : and 

(15) Decl. of Rights, art. 6th. 

(16) 1st Gill and Johnson, 464. See also, 5th Har. and Johns 304. 



Chap. X.] GENERAL ASSEMBLY. 501 

all its acts beyond the appropriate sphere of legislation, are null 
and void. Its power is simply to designate civil rights and reme- 
dies, and to propound rules of action to the citizen : whilst the 
enforcement of these belongs to the other departments of the 
government. Thus considered, it renders easy the application 
of this general restriction to particular cases, as they may arise. 
The distinction between legislative and executive power, is too 
obvious to require comment. That which separates legislative 
from judicial power, is often faintly defined, and is most likely to 
be overlooked. Yet there are two general principles, relative to 
the two great functions of the judiciary, by the application of 
which to any Act, the presence of judicial power is easily ascer- 
tained. 

To enact laws, is the province of the Legislature : to construe, 
interpret, and apply them, is the office of the Judiciary. The 
former determines what the law shall be : the latter declares 
what it is or has been. Therefore, all acts of Assembly, which 
attempt to alter or control the construction of antecedent laws, 
are exercises of judicial power, and are wholly inoperative for 
such purposes. The Assembly may alter or repeal laws : but it 
cannot, by its interpretations, affect their antecedent operation: 
and hence, although such Acts may operate as new laws, from 
the time of their passage, upon all future cases, they cannot affect 
the construction of Acts as to cases which have already oc- 
curred. (17) 

To the Legislature it belongs, to define civil rights and devise 
remedies for their protection, to prescribe rules of conduct to the 
citizen and punishments for their violation: to the Judiciary, to 
apply these remedies, and adjudge these punishments. From 
these distinctive features of their function-, u e may collect the 
general principle " that wherever a right exists, for w Inch the laws 
have assigned a remedy to be sought through the courts of justice, 
any act of the Assembly, taking the remedj into ii- own hands, 
and prescribing the redress to lie made, is an exercise of judicial 
power, ami as such i- unconstitutional and void*" This prinoiple 
will be found to he rullj sustained by tin- case of Crane vt. Ma- 
ginnis ; although in that case, the Court of Appeals did not un> 

(17) See 2d Cranch, 276, and 7th Johnson's N. V. & 
and 508. 



502 THE TOWER OF THE [Hist. View. 

dertake to define judicial power generally, but simply declared, 
that the particular exercise of power under their consideration, 
was judicial in its nature. Yet from that particular instance, we 
may collect this general principle of such extensive application. 
The Act in question in that case was an Act of divorce, by one 
section of which the husband was required to pay over a certain 
annual amount for the support of his wife. Upon a full examina- 
tion of the power to divorce as ever exercised in this State, it was 
determined by the court, that it was here a legislative power, but 
did not draw after it, as its necessary incident, the right to allow 
alimony : and that the suit for alimony in this State, as in Great Bri- 
tain, was a distinct remedy from the proceedings for divorce, had 
been so considered before the Revolution, and was now expressly 
recognized as such by the Act of 1777, investing the Chancellor 
with jurisdiction over such suits. " We cannot bring ourselves to 
doubt (say they in conclusion,) that if Mrs. M. had obtained simply 
an act of divorce, she might have recovered, having merits, a main- 
tenance suitable to her condition in life, and to quadrate with the 
situation of her husband, by a bill in Chancery, or an application 
to the Equity side of Kent County Court. If she could have been 
thus redressed by an exercise of judicial authority, we would ask, 
is it not fair to conclude that the redress granted to her by the 
legislature is an exercise of judicial authority?" (18) Yet this 
principle must be confined to the administration of remedial 
power by the legislature itself: and cannot apply to Acts, which 
merely transfer that power from one tribunal to another, or dele- 
gate it for a particular case to a special tribunal : or which rein- 
state a judicial proceeding, or restore a remedy through the Courts 
after it has been lost. Such Acts as the latter, are only exercises 
of its unquestionable power to prescribe and modify civil reme- 
dies, and are essentially distinct from those by which the legisla- 
ture itself undertakes to administer them. (19) 

(18) See 1st Gill and Johns. 475. 

(19) See the cases of Garretson vs. Cole, 1 Harr. and Johns. 391, and 
Gover vs. Hall, 3d Harr. and Johns. 49. Yet the latter exhibits a strong case 
of legislative interference, which can scarcely be sustained even upon the 
doctrines of the text, although it was acted upon by the Court of Appeals. 
It was a case from Chancery, in which the original decree of the Chancellor 
was reversed by the General Court, and the case remanded under its decree. 



chap . x.] GENERAL ASSEMBLY. 603 

(3) The restrictions protective of constitutiond institutions. 

It is unnecessary, in this place, to enumerate the m\ eral offices 
established by our constitution, or for which it has provided a 
manner of appointment, or prescribed powers and duties. This 
belongs more properly to the history of the origin and nature of 
these offices, from our several examination of which it will ap- 
pear, in what instances, and to what extent, they are Constitutional 
Institutions. For our present purposes, it is only necessary to illus- 
trate the extent, to which such institutions generally are protected 
by the constitution from the ordinary legislation of the Assembly. 
' All State offices, which are not established or recognized by 
the constitution, but have been introduced upon common law 
principles and as common law institutions, or established by acts 
of Assembly, and rest upon the latter for their existence and 
powers, are wholly under the control of the Assembly, and may 
be abolished or modified at pleasure by its ordinary acts. It is also 
competent to the Assembly in creating a new office unknown to 
the constitution, to give it any form, or prescribe any mode of 
appointing to it, which does not interfere with the express consti- 
tutional powers of other officers. If the constitution simply es- 
tablishes an office, and does not determine its tenure or powers 
and duties, nor designate the manner in which its incumbents are 
to be appointed; the office cannot be abolished except by an 
amendment of the constitution, but in all other respects, it is sub- 
ject to the operation of mere laws. If the constitution has not 
only established or recognized the office, but has also determined 
its tenure, or designated the manner in which the officer to fill 

In Chancery, a new decree was then made, conforming to that of the 
General Court, from which appeal was again prayed, and the cause re- 
moved to the Court of Appeals : and whilst there pending, for reasons which 
it ,. n try to detail, an act of Assembly n as passed, by which the 

Court of I is directed to take up the case it ruwo, and to decree 

as if no decree in the c tse bad i «de hy the General Court. The 

result of the C9 - '«' tllC Chancellor, which had 

reed by thi • ' " 1,rt " f Aj'l 1 ™ 1 * '• 

but t hc re] rbether this wai of power under 

the act of Assembly, or ( ue to which " :i1 - considered them- 

npeteni wit ucb act. The Act in question, was in effect 

the reversal of a judicial decision: and as such, saton strongly of judicial 
p 0W ( iwerer, the remarks of Spencer, J. in 7th Johns. N. Y. Kc- 

. 101. 



504 THE POWER OF THE [Hiat. View. 

it shall be appointed, either naming it particularly, or embracing 
it under general terms, applicable to it as an existing office at the 
time the constitution was established, the tenure and manner 
of appointment are constitutionally protected, as well as the 
office itself. But to all offices, the Assembly may, by ordinary 
acts, attach new powers and duties, provided they conform to the 
nature of such offices, as judicial, legislative, or executive, and do 
not conflict with their constitutional obligations. These general 
principles, which are collected from the past and most approved 
constructions of our constitution, will readily determine, in any 
case, the extent of this class of restrictions upon the powers of 
the General Assembly. (20) 

(4) The restrictions flowing from the declared rights of the citi- 
zen. 

Our Constitution and Bill of Rights, alike those of the sister 
States, embody many political truths, which ought to be received 

(20) 1st H. and Johns. 249 : 5th H. and J. 304 ; Opinion of Luther Martin, 
(when Attorney General) to the Governor and Council, in Council Chamber 
Records of January and April, 1819. See also the Opinion of Lord Chief Jus- 
tice Willes, in which he maintains that notwithstanding the charter power of 
the proprietary to appoint all officers of the province, it was competent to the 
Assembly, in creating a new office, to vest the appointment elsewhere. 
(Journal of House of Delegates of 23d March, 1760, and supra 310.; This 
general proprietary power, is analogous to that of the Governor and Council, 
under the 48th art. of the Constitution, to appoint all civil officers of the go- 
vernment : and the references above given, and particularly the opinion 
of C. J. Willes, fully sustain the position of the text, that such general ap- 
pointing powers do not exclude the Assembly, in creating a new office, from 
prescribing a new mode of appointment. It seems, therefore, that the seve- 
ral acts of Assembly, establishing Boards of county Commissioners, in lieu 
of the Levy Courts, and giving to the people of the counties in which they 
are established, the right of electing them, do not infringe the constitutional 
powers of the Governor and Council. 

It will be seen hereafter, that a similar construction has been given to the 
37th article of the Const., excluding delegates, &c. from holding other offices 
of profit : which rests for its sanctions upon the high authority of Mr. Pinkney 
and Mr. Martin. If it be admitted that general restrictions intended to secure 
the purity of office, do not apply to new and local offices, as not being within 
the contemplation of the constitution: it is much more manifest, that the gene- 
ral appointing power of the constitution does not necessarily attach to them, 
so as to exclude any other mode of appointment provided for them by the legis- 
lature at the time of their creation. 



Chap. X.] GENERAL ASSEMBLY. 503 

as maxims in all republican governments, but are not sufficiently 
dt finite to be regarded as imperative restrictions. Such general 
doctrines are not without utility. They illustrate the powers of 
government by its nature and ends: and present these constant- 
ly to the view of men in authority. But many of them are too 
indefinite to answer the purposes of standards, by which the con- 
stitutionality of acts can be tested. Culling from them such as 
will answer this purpose, and classifying them according to their 
objects they will be found to relate, principally, to the purity of 
criminal prosecutions — the protection of the rights of con- 
science — the just distribution of taxation — the subordination of 
the military — and the liberty of opinion. 

In all ages, prosecution for alleged crimes has been the great 
engine of tyranny. Arbitrary power always seeks to cloak its 
vengeance under the mantis of justice and to make the dispen 
sations of the law, the ministers of its own ambitious or malignant 
purposes. As in this mode the liberties of the subject are most 
easily approached, and are here most open to attack, it should 
be the first aim of every government, to give certainty to the 
character of criminal offences, and to surround the proceedings 
in criminal cases with every possible security for the protection 
of the innocent. Offences should be well defined: punishments 
should be as lenient as is consistent with their proper object, 
the welfare of society, and proportioned by law, as far as practi- 
cable, to the enormity of the offence: the tribunals to ascertain 
the existence of crimes should be above all influences, except the 
authority of the law, and the dictates of their own judgments: 
and the alleged offender Bhould be clothed with every power and 
privilege, which might be necessary, in any event, to the vindi- 
cation of innocence. When the criminal code of any country 
wears this character, the chief dangers to civil liberty are remov- 
ed; and arbitrary power, if it would reach it, can approach only 
in its naked deformity. Hence the anxious'care of ourfform ol 
vernment, in reference to criminal] prosecutions. It expressly 
denies to the Assembly the power to pass any ex pott facto 
laws in criminal cases ; of which nature are all laws operating 
upon act- committed before their passage, either so as to render 
ihem criminal although innocent ,-.i the time of their commission! 
or to increase the degree or change the nature of their punish- 
64 



506 THE POWERS OF THE [Hist. View. 

ment, if originally criminal. It prohibits all Acts, which would 
attaint particular persons of treason or felony, or forfeit any part 
of the estate of any person for any crime except murder or trea- 
son against the State. All general warrants to search suspected 
places, or to apprehend suspected persons, without particularly 
naming or describing the place or person, it pronounces illegal ; 
and all warrants, without oath or affirmation, to search suspect- 
ed places, or to seize any person or property, it denounces as 
grievous and oppressive; and therefore it prohibits the passage 
of any Acts, which would authorise them. It expressly declares 
the constitutional right of the citizen, in every criminal prosecu- 
tion, to be informed of the accusation against him, to have a 
copy of the indictment or charge in due time (if required) to 
prepare for his defence, to be allowed counsel, to be confronted 
with the witnesses against him, to have process for his own wit- 
nesses, to examine the witnesses for or against him on oath or 
affirmation, to have a speedy trial by an impartial jury, and not 
to be convicted without their unanimous consent. Any Acts 
which violate these well defined privileges, are unconstitutional 
and void. (21) 

The right to worship God according to the dictates of con- 
science, is the natural right of every human being, which God 
himself has sanctioned, and human laws cannot justly impair. 
Hence, our Bill of Rights expressly prohibits the passage of any 
law, which would molest the person or estate of the citizen, on 
account of his religious persuasion, or profession, or practice ; 
unless, under color of religion, he disturbs the peace, good order 
or safety of the State, or infringes the laws of morality, or injures 
others in their natural, civil, or religious rights : yet even in such 
cases as the latter, the power of the Assembly is restricted to 
the suppression of such abuses. It also denies to the Assembly 
the power to compel any person to frequent, or maintain, or con- 
tribute to maintain, unless on contract, any places of worship, 
or any ministry. (22) 

(21) Bill of Rights, articles 15th, ICth, and 19th, as amended by the actof 
1817, chap. 61, 23d, and 24th. Although the constitutional power to for- 
feit the property of the offender, in cases of murder and treason, still exists, 
yet all forfeitures are taken away by the act of 1809, chap. 138, sect. 10. 

(22) Bill of Rights, article 33d, as amended by the acts of 1809, chap. 
167, and 1810, chapter 24. Before the amendment of 1810, the Gene- 



Chap. X.] GENERAL ASSEMBLY. 507 

The distribution of the burdens of government, in proportion 
to its benefits, is one of the most obvious dictates of justice ; 
yet it is difficult to lay down any general rules, by which this pro- 
portion can always be estimated and preserved, in the imposition 
of taxes. To arrive at it as nearly as possible, our Bill of Rights 
expressly prohibits the imposition of any poll tax, and adopts as 
the general principle of State taxation, the doctrine " that every 
person ought to contribute to the public taxes, for the support of 
government, according to his actual worth in real or personal 
property within the State." Although the latter rule is not 
sufficiently definite to guard against oppressive distinctions, 
resulting from a system of taxation purporting to be based upon 
it : yet it cannot be doubted, that any system, which expressly 
adopts any other rule of taxation, is unconstitutional and void. 

(23) 

In every government, the subjection of the military to the civil 
power, is one of the greatest securities of the citizen. The 
rule "inter arma silent leges," can apply only to cases of extreme 
exigency ; and in all other cases, the laws themselves should never 
sanction a violation of private rights, or a departure from the or- 
dinary forms of judicial proceedings. Our Bill of Rights has 
therefore, not only affirmed the general doctrine, that the military 
should always be retained in strict subjection to the civil power; 
but it also expressly prohibits all laws, which would subject to 
martial law, any but those in the regular service of the State, or 
militia men when in actual service, or which would authorise the 
quartering of any soldier, in time of peace, in any house without 
the consent of the owner. (24) 

The privilege of discussing freely, and resisting by remon- 
strance, all public measures, is an essential right of the citizen 
under every free government. Our Bill of Rights, therefore, 

ral Assembly had the power of imposing a general and equal tax for the 
support of the Christian Religion, reserving the right to every individual of 
appointing the payment of any such tax collected from him, to the support 
of any particular place of worship or minister, or for the benefit of tho 
poor of his own denomination, or of tho poor in general of any particular 
county : but this power is wholly taken away by that amendment. 

(23) Bill of Rights, art. 13th. 

(24) Bill of Rights, art. 27th, 2Sth, and 29th. 



508 *~~^- THE POWERS OF THE [Hist. View. 

declares "that the liberty of the press ought to be inviolably 
preserved :" and guarantees to every citizen, the right of petition- 
ing the legislature for the redress of grievances in a peaceable 
and orderly manner. (-25) 

(5) Those relative to the enactment and publication of laws. 

The manner of originating and passing bills or resolutions, in 
each House of Assembly, is determined by its rules ; which 
have full control over all that relates to the mere forms of pro- 
ceeding. The Constitution only prescribes the enacting style of 
laws, and directs the manner in which they shall be authenticated, 
published, and recorded. All bills passed by the General As- 
sembly, when engrossed, shall be presented by the Speaker of 
the House of Delegates, in the Senate chamber, to the Governor, 
who shall sign the same, and affix thereto the great seal of the 
State. They are then recorded, and certified to the counties. The 
original place of record was the General Court office, from which 
it was transferred, upon the abolition of that court in 1S05, to 
the office of the Court of Appeals for the Western Shore. (26) 

(25) Bill of Rights, art. 11th and 38th. 

(26) For the speedy and general circulation of the acts, resolutions, and 
journals of each Assembly, our laws have made the fullest provision. 
As soon as they are recorded and published, one copy of the acts and 
resolutions is certified under the great seal of the State, to every couDty, 
agreeably to the requisitions of the 60th Article of the Constitution, and 
the| Act of 1715, chapter 25 : and the copies thus authenticated, are there- 
fore evidence of all laws, whether private or public. One copy of the laws, 
and the votes and proceedings of each House,, are also annually printed 
for, and transmitted to, the governor, each member of the executive coun- 
cil, each judge of the courts, the attorney general, register in chancery, 
each treasurer, each register of wills, each sheriff, the commissioners of the tax 
and trustees of the poor for each county, and the directors of the penitentiary ; 
one copy of the votes and proceedings to the clerk of the Court of Appeals ; 
and one copy of the laws, and four of the votes and proceedings, to the 
clerk's office of every county — 1790, chap. 51]; 1825, chap, 78 ; Resolution 
74th of 1827 ; 12th of December session, 1828 ; and 62d of December session, 
1829. 

The manner of printing them is prescribed by the 64th Resolution of No- 
vember session, 1811 ; and the printing is now generally done under contract 
with the Legislature, upon proposals. Until 1812, the printing was done by 
a salary officer, who was called the printer to the State, and whose salary was 
regulated every year by the annual Act for the payment of the civil list; 



Chap. X.] GENERAL ASSEMBLY. 509 

The incidental powers of the General Assembly. 

These are powers of appointment and removal, the nature. 
and objects of which will be particularly examined, in connexion 
with the history of the several offices to which they relate. It 
will therefore be sufficient, in this place, to denote these offices: 

The General Assembly elects, annually, the Governor and 
Executive Council of Maryland. (27) 

It has the power of appointing the Senators to represent this 
State in the Senate of the United States; but where vacancies 
occur during its recess, they may be filled, until its assemblage, 
by the appointment of the governor and council. (28) 

It has, virtually, the power of appointing all Registers of Wills, 
by its right of recommending imperatively to the governor and 
council, the person to be commissioned: but the latter have the 
same power of filling vacancies in the recess, as in the preceding 
instance. (29) 

It has also the power of appointing Bank Directors to represent 
the stock of the State in several of the State Banks. (30) 

It may demand the removal of the Attorney General of the 
State, or of any Judge of any of the county courts ; but in cases 
of the latter kind, the address of the Assembly to the governor, 
requiring the removal, must be adopted by the votes of two-thirds 
of all the members of each house. (31) 

The time and place of meeting of the General Assembly. 

The regular sessions of the General Assembly are annual, and 
commence on the last Monday of December in every year. The 

but since that period it has been done by contract at each session, sometimes 
made by committees of the Legislature, and sometimes by the executive, 
under the authority of an \ act or resolution. Sec Chandler is. The State, 5 
Harris and Johnson, :.'- I. 

(07) Sec 2d volume, chapter, " of the Governor and Council of Maryland." 

Constitution of i . B. art Lit, supra 3d, and 2d volume, chapter, 

" of the adoption and obligations oj the Federal Government." 

(29) Sec 2d volume, chapter, "of the offic </ U~dlt. u 

(30) Sec 2d volume, chapter, " of the Treasury <f the Stub " 

(31) Sec 2d volume, chapters, " of the office of .ittomcy General," and " <•/ 

the County Courts." 



510 THE POWERS, &c. [His!. View. 

time of assemblage was originally, the first Monday of Novem- 
ber : but in 1812 it was changed to the first Monday of December; 
and in 1824 to the last Monday of December. (32) 

It may also be convened by the Governor, with the advice of 
his council, at any period, upon giving not less than ten days 
notice; and where the two houses have adjourned to different 
days, the Governor may convene the Assembly on either of these 
days, or any intermediate day. (33) 

The sessions of Assembly are held at the city of Annapolis, 
which has remained the seat of the State Government, without any 
constitutional security for its continuance as such, ever since 
the adoption of the State Constitution. 

(32) Constitution, art. 23d, as amended at first by the acts of 1811, 
chapter 211, and 1812, chapter 129, and afterwards by the acts of 1823, 
chapter 111, and 1824, chapter 73, 

(33) Constitution, Art. 29. 



CHAPTER XL 



THE SEVERAL POWERS OF EACH HOUSE OF ASSEMBLY. 

Of the powers and privileges severally possessed by the Sen- 
ate and the House of Delegates, there are some, which are com- 
mon in their kind to both, and only several and exclusive in 
their exercise: and others, which are peculiar to one or the 
other both in kind and exercise. Those, which are in their kind 
common to both houses, relate to — (1) Their several organiza- 
tion — (2) The obtention of information for the discharge of their 
official duties — (3) Their right of self-protection. 

(1) The powers relative to their several organization. 

Each house has the exclusive right to judge of the elections 
and qualifications of its own members. Each house shall ap- 
point its own officers, and settle its own rules of proceeding. 
Each house shall choose its presiding officer ; who, in the House 
of Delegates shall be styled "the Speaker," and in the Senate 
" the President." In each house, a majority of its members, and 
its presiding officer, are necessary to make a quorum for any act 
except that of adjourning. Each house may adjourn itself: but 
if the two houses adjourn to different days, the governor shall 
appoint and notify one of those days, or some intermediate day, 
as the day of meeting: or he may, by the advice of his council, 
convene the Assembly at any time before the time to which it 
has been adjourned, upon giving not less than ten days notice : 
but he cannot prorogue or dissolve it under any other circumstan- 
ces. Each house may propose to, and receive from the other, bills, 
resolutions, and other legislative arts: and may assent, dissent, or 

propose amendments, except u to money bills, which can neither 
originate in nor be amended by the Senate. (1) 

CI) Const, trtv «th, 9th, 10th, 20th, 21st, 22d, 24lh, »nd 29lh. 



512 THE SEVERAL POWERS OF [Hist. View. 

The propriety of the regulations, relative to the appoint- 
ment of their officers, the transaction of their business, and the 
determination of their respective rules of proceeding, is too obvi- 
ous to require comment. The power of each house to judge of 
the elections and qualifications of its respective members, is 
vested in them of necessity. It must exist somewhere. With- 
out it, it would be useless to create qualifications, and prescribe 
rules of proceeding, in the election of Senators and Delegates: 
and it could not be vested in the legislature collectively, as it 
would then conflict with the separate and independent existence 
of the two houses ; and would impair their efficacy as mutual 
checks, by enabling either to control or affect the organization of 
the other. In determining upon the qualifications of their mem- 
bers, the houses of Assembly can have but little difficulty. These 
are so fully and clearly defined, that he who runs may read and 
apply them. Questions as to the proper conduct of elections, 
are more embarrassing. The manner of proceeding is, it is true, 
as well defined as the qualifications: but the difficulties as to the 
former, consist in determining with what strictness its regulations 
must be adhered to, and when the non-observance of them will 
vitiate the election. The competency of the voter, and the 
authority of the persons holding the elections and receiving the 
votes, are essential to the validity of the vote. This, as a gen- 
eral proposition, is undeniable : yet doubts often arise from its 
particular application. 

The sufficiency of the authority by which elections have been 
conducted, has been frequently drawn into question, by cases in 
which the judges or clerks of election, although properly ap- 
pointed, did not qualify in the manner required by law, and by 
defects in the returns of elections. The doctrine of the present 
day is, that mere omissions or informalities of this kind will not 
invalidate the election : and that the people shall not be disfran- 
chised, by the neglect of those who are competent to hold the 
elections. A contrary doctrine would certainly open the door 
to the grossest frauds, in warmly contested elections : as it would 
enable those who hold them, by the wilful disregard of their 
duties, to annul such elections at their pleasure. Defects in re- 
turns, especially, should, at all times, be open to amendment 
according to the fact. 



Chap. XI.] EACH HOUSE OF ASSEMBLY. -,|.; 

In deciding upon the sufficiency of the vote, doubts often 
arise, as to the residence of the voter, and the designation by the 
ballot of the purpose of the vote and the person voted for. 
When such oases occur, they sometimes give rise to further 
difficulties in determining the proof admissible and sufficient in 
them — the admissibility of parol evidence, to prove what the 
ballot was, or to help out an insufficient designation of its pur- 
pose — and the power to compel the voter to testify for whom 
he did vote, or, in the absence of his testimony, to introduce se- 
condary evidence. 

The ballot, agreeably to the requisitions of the act of 1S05, 
must have written, or printed thereon, the name of the person 
voted for: and it must plainly designate the purpose. Some- 
times the ballot does not exactly apply to the person for whom it 
was intended: sometimes it is ambiguous, and will apply to two 
or more persons of the same name ; and sometimes it appears 
to apply exclusively to another. In all such cases, without re- 
quiring that precise description which is requisite in a declara- 
tion or an indictment, the object should be, to discover the in- 
tent of the voter, and to effectuate it wherever it can be ascer- 
tained with reasonable certainty. It is difficull to lay down any 
general rules upon this subject. They must often be framed jnn 
re nata ; and circumstances, which have but little weight in 
themselves, are often rendered powerful by combination with 
others. Where the vote can apply only to 0m 1 eligible person, 
oronly one known as a candidate, their ig a reasonable certainty 
that it was intended for such person. Such was the doctrine of the 
House of] .in thecaseof Dashiell, at December session, 

L 823; and in that of M'Neill, at Decembet session, 1829. As to 
the purpose of the ballot, the act requires Bimply, thai it shall be 
plainly designated. The usual mode of designation is by a written 
or printed heading, setting forth the object ; bu1 the act does aol ap- 
to render this the exclusive mode. In the case of Travilla, 
Hon e of Delegates, at December session, 1829, 
it appeared th.it there were Beveral ballots, which had the head- 
ing, ' For Con ind immediately beneath it the name of 
ntleman who i o did ate for Congress: and below his 
name, the names of Travilla and others, separated only l>\ a hue. 

The persons, whose names appeared below- tin- line wire can- 
66 



514 THE SEVERAL POWERS OF [Hist. View. 

didates for the Assembly when the ballot was given : and the 
House of Delegates held, that this fact, taken in connexion with 
the fact that they were not candidates for Congress, made the line 
a sufficient identification of the purpose. There were but two 
elections then held : viz., for members of Congress, and members 
of Assembly. The vote was given with reference to one of these 
elections. The separation by the line from the name of the per- 
son voted for as a candidate for Congress, and the fact that they 
were not candidates for Congress, but were for the' Assembly, 
were held sufficient to establish, with reasonable certainty, that the 
vote was given to them for the latter purpose. Where there are 
no such explanatory circumstances, and more persons are named 
for any one office than the party had a right to vote for, the 
ballot as to this is void. 

The residence required, is not a continued, uninterrupted resi- 
dence in fact. A mere temporary absence from the State or 
county, or a sojourn elsewhere, will not deprive the party of hia 
vote. Residence cannot be thus lost. If there be the intention 
to return, clearly manifested : and it appears, that there was no 
design to change the residence in going out of the state or 
county, the person remains, in contemplation of law, a resi- 
dent, notwithstanding his absence or sojourn elsewhere. — 
Whilst this intention continues, no length of absence will work a 
loss of residence: and in ascertaining it, the judges of election 
may, and do examine, on oath or affirmation, the voter himself; 
and may also call in aid, his conduct and declarations at the time 
of going out of the state or county, as furnishing the best illustra- 
tions of his intention at that time. (2) 

The right to require the voter himself, in contested elections, 
to disclose his ballot, and the propriety of receiving his testimo- 
ny, or that of any other person, for that purpose, were much 
discussed in the case of the Calvert election, at December session, 
1819, and of the Annapolis election, at December session, 1828: 
in each of which cases they were contended for, as necessary to 
purge the polls. In the first mentioned case, it was solemnly 
decided by the House of Delegates, that it had the power to 
coerce any person, who voted at an election, and was proved not 

(2) See 2d Harris and Johnson, 388 and 395. 5th Harr. and Johnson, 97. 



Chap.Ttt] EACH HOUSE OF ASSEMBLY. 515 

to be a qualified and legal voter, to give evidence as to the per- 
sons for whom he had voted: and after the adoption of an order, 
predicated upon the testimony taken before the committee of 
elections, and declaring certain persons therein named to be 
illegal voters, they were called to the bar of the House, and 
required to give such evidence. To this they objected, but 
the House overruled the objections, and some of them were ac- 
cordingly examined. Others persisted in their refusal, and 
formally protested against the right of the House to compel 
their answer; and upon such refusal and protest, no attempt was 
made to coerce them ; but an order was adopted, setting forth 
their refusal, and admitting evidence of their declarations as to 
the manner in which they had voted. It cannot be doubted that 
this proceeding, so far as it asserts the right of the House to 
compel the illegal voter to give such testimony, was wholly 
illegal and arbitrary. He is subject to a penalty, and he is 
expressly exempted, both by the rules of the common law, 
and the |20th article of the Declaration of Rights, not only from 
answering any question which might criminate him, but also 
any which might tend to criminate him, or of which the 
answer might furnish a link in the chain of testimony against 
him. To the admissibility of his declarations for the pur- 
pose of proving for whom he voted, there is less objection. 
They would be evidence against him if prosecuted for illegal 
voting; and if it be proper at all to enter into such in- 
quiries for the purpose of purging the polls, there is scarcely 
any other mode in which the House could arrive at the facts. 
The testimony of some person, who saw the ballot when it 
was deposited in the box, can rarely, if ever, be obtained. \< t 
at last, it may well be questioned, \\ bether such mode- of scrutiny 
do not open the door to fraud and perjury. If a person is once 
established to be an Illegal voter, the proof of the manner in 
which he did vote, can rarely consist of any thing but his testi- 
mony or his declarations; and thus it it placed in the power of 
him, who has once ;icicd irandidentlj in giving an illegal rote, to 
double his fraud l>y representing the vote as different from ivhat 
it actually was. I le might do thi^ \\ ith impunity ; for if there be 
perjury in such a ci >le to d< teel it. In the 

Annapolis case, above refi rred to, it was the ri ceiv< d opinion o 



51G THE SEVERAL POWERS OF [Hist. View. 

the House, that neither the testimony, nor the declarations of 
the voter, were admissible for this purpose. 

In all contested elections, however, the Houses of Assembly 
prescribe their own rules of decision: yet their discretion in the 
application of these, must be a wise and sound discretion, which 
sustains and gives efficacy, as far as possible, to the purity of the 
elective franchise. They are not fettered by the decisions of 
antecedent Assemblies : yet such decisions, if well settled, are en- 
titled to respect, and should not be lightly departed from. There 
are, however, but very few precedents on the journals, which 
can be adopted as safe guides. Contested elections always 
occur in times of party excitement; and these contests rarely 
take place, except in cases where the whole power of the State 
for the coming year, hangs upon their decision. The prize is 
then too great to be lost without a struggle; and parties, to 
secure to themselves the government of the State, will not boggle 
about the sacrifice of justice to expediency. They generally do 
not strain at the gnat, and will swallow the camel if it is neces- 
sary. They will do collectively, what individually they would 
consider unjust in the extreme. These are the necessary con- 
sequences of party excitement; and they are strikingly illustrated, 
in some of the cases which have occurred in the House of 
Delegates. The principal cases of contested elections, which 
have arisen since the passage of the act of 1805, are, the 
Allegany case, at December session, 1813, which has been called 
" the Allegany fraud," and the Calvert case, above alluded to, in 
1819. In the first case, the vote of an entire district in Alle- 
gany county was rejected, because the presiding judge of elec- 
tion for that district was qualified by another judge, instead of 
being qualified by a justice of the peace, or one of the clerks of 
election. The rejection of this vote was necessary, to ensure 
the election of the federal members, and thereby the election of 
the governor ; and therefore the strict construction of the act of 
1805, as to qualification, was contended for and sustained by the 
decision of the House. This decision has since been virtually 
overruled in the case of the Queen Anne's election, at Decem- 
ber session, 1828, where the votes of a district, which had 
been rejected by the returning judges, because the clerks of elec- 
tion had been qualified by a justice of the peace, and not by a 



Chap. XI.] EACH HOUSE OF ASSEMBLY. 517 

judge of election, as the law then required, were received and 
declared legal by the House of Delegates ; and the membe 

who would have been excluded by their rejection, w< re accord- 
ingly admitted to then The principal decision in the 
Calvert case, lias already been advened to; but there were some 
incidental decisions of the House in that case, as to the right to 
impeach the credibility of witnesses, w bich are truly extraordinary. 
se cases have aol passed, and are not likely to pass, into 
precedents: but they teach as forcibly the influence of partisan 
feelings upon the most honorable minds, in leading whole par- 
ties, composed of men of integrity and intelligence, to conclu- 
sions directly opposite, upon questions of right. 

In the Senate, very lew difficulties arise in the exercise of this 
power. The Senate is not permitted to scrutinize the organiza- 
tion of the electoral college. That body is the sole judge of the 
elections and qualifications of its own members; and the Senate 
is limited in its inquiries, to the regularity of the proceedings of 
the college, and the qualifications of those returned as senators 
elect. In both houses, the power to inquire into the elections 
and qualifications of their members, would carry with it, as its 
incidents, all other powers necessary to it- exercise: but, in ad- 
dition to these, the Mouse of Delegates is clothed, by the I lib 
article of the Constitution, with the express pow< r to call for all 
public or official papers, and to Bend for all persons whom they 
may judge necessary, in the course of their inquiries relative to 
public afiairs. 

The powt r to adjourn, and the exceptions to thai power, rest 
upon the same reasons, and are in perfect accordance with each 
other and with the nature of the two houses. Each house should 
be independent of the other, and of the executive: and hence 
the exclusive power of each, and the general denial to the I 
entire of the powerto adjourn, prorogue, ox dissolve them. Sud- 
den 'ill- not foreseen by the legislature at the time ol 
idjournment, may require its prompt action: and hence the 

power to (he Governor and Conned. tO convene it at an earlier 

than that to which il stands adjourned. In the exorcist ol 
th.ir several powers of adjournment, the two houses may differ. 
Each may wish to prescribe the nine: and each may be unwil- 
ling to r< cede from the ground it has ti ken. Hence the i lia- 



518 THE SEVERAL POWERS OF [Hist. View. 

torial power of the Governor, to convene both houses, on either 
of the days to which the two houses may severally adjourn, or 
on any intermediate day. 

(2) The obtention of information. 

Each house of Assembly may require the opinion and advice 
of the Attorney General of the State, on any matter or subject 
depending before them ; or may call for, and require to be laid 
before them, the proceedings of the Executive Council. (3) The 
want of such information is occasional, and these powers are 
given to meet and supply it. Of the proceedings of the princi- 
pal State officers, the legislature is informed, by returns made by 
those officers at stated periods, which render the grant of a 
power to call for them unnecessary. In some cases these re- 
turns are made to the General Assembly, in others only to one 
branch of it. The duty of the several officers in preparing and 
transmitting them, will appear hereafter. Besides the common 
powers above specified, the House of Delegates has certain pe- 
culiar powers of this description, which will be considered here- 
after. 

(3) Their right of self-protection. 

The right to protect itself and its members in the discharge of 
their official duties, and to repress all acts of disorder or insult 
which interrupt or hinder their proceedings, is necessary, to the 
independent existence, and efficient action of every legislature. 
Hence, where the powers requisite for this purpose are not ex- 
pressly granted, they are held to result by necessary implication 
from the delegation of legislative power, upon the principle, that 
where a grant is made, it carries with it as inherent every thing 
necessary to its enjoyment. The power of self-protection, en- 
ters into the very existence of a legislature, and is consider- 
ed so essential, that most constitutions have deemed it inex- 
pedient to define the cases to which it extends, and have 
preferred to rest it upon an implied right of punishing con- 
tempts, which will expand itself to every case of that character, 
however new in instance. Even the Constitution of the United 
States, relating to a government of express grant, has not ex- 
pressly granted this power, so far as it extends to persons not 

(3) Const, art. 26th, and Act of 1821, chap. 126. 



Chap. XI.] EACH HOUSE OF ASSEMBLY. 519 

members; but has left it dependent, both for its existence and 
extent, upon necessary implication. Our State Constitution has 
ordered it otherwise. It has not followed the doctrine of other 
governments, that the law of privilege should be concealed in 
the breast of the legislature, undefined, unknown, and appearing, 
only when its existence is called for, to define the offence and 
punish the offender by one and the same act. We proceed to 
consider the right of self-protection granted by it to each house 
of Assembly, with reference to its own members or to third per- 
sons. 

Offences against either house of Assembly, committed by any 
of its members in the house and during its session, are not parti- 
cularly defined by the Constitution; nor is there any peculiar 
power to punish these expressly given, except that of the 
House of Delegates to expel its members, which will be consi- 
dered hereafter. There is, indeed, a general authority given to 
each house, by the 12th article of the Constitution, to punish by 
imprisonment, any person who shall be guilty of a contempt in 
their view. Each house is also empowered, by the 24th article, to 
prescribe its own rules of proceeding; and it has, therefore, the 
right to regulate the demeanor of its members, and to punish 
every departure from the decorum which its rules prescribe. 
Hence the rules adopted by each house for its government, 
contain a variety of regulations, prescribing, in the most defi- 
nite terms, the conduct and demeanor of its members, and car- 
rying with them the express power to restrain or punish, by 
censure or fine, all misdemeanors which shall be committed in 
such house; and they confer also upon the Speaker or President, 
the general power to call to order. As to the offences consist- 
ing in acts done without the house, which are defined by the 
12th article, the prohibition and tin- power of punishment appear 
to extend, as well to members, as to others. The privileges of 
the honse are as much invaded by such acts, when committed by 

its member-, a- if dour 1 . y other per-on- ; rind the consequence 

are the same. In such cases, the rules of the bouse cease to 

operate, and it i> therefore remitted to its general power, in the 

punishment of such contempts bj its members, Dot committed in 

its view, nor whilst in the discharge of their official dm 
Where acts are done by a member out of the house, and not in 



520 THE SEVERAL POWERS OF THE [Hist. View. 

his official capacity, nor falling within the prohibitions above 
mentioned, the house has no more control over him than over 
persons not members. 

Having seen, that the members of each house are subject to its 
rules, and also to the general prohibitions of the 12th article, 
it will be proper to consider these prohibitions, before Ave in- 
quire into their power to punish either members or third persons, 
for any act not falling within them. Offences of third persons, 
which are specified by the 12th article, as breaches of privilege, 
or contempts of either house, consist — in contempts in the view of 
such house, by any disorderly or riotous behaviour, or by threats to 
or abuse of its members, or by any obstruction of its proceedings — 
and in breaches of privilege, by arrests of or assaults upon mem- 
bers, assaults upon or obstructions of officers in service of process, 
assaults or obstructions of witnesses or other persons in attendance 
upon such house, or on their way to or from it, or rescues of per- 
sons committed by it. Such being the offences, they are pun- 
ishable by imprisonment alone ; and that imprisonment will en- 
dure only during the session of the legislature. "The existence 
of the power that imprisons, (says the Supreme Court of the 
United States,) is indispensable to its continuance ; and although 
the legislative power continues perpetual, the legislative body 
ceases to exist on the moment of its adjournment or periodical 
dissolution. It follows that imprisonment must terminate with 
that adjournment." (4) 

The implied power to punish for contempts and breaches of 
privilege, extends beyond these enumerated cases. That of 
the two houses of Congress, which is an implied power, has 
been held to extend to all attempts to corrupt the integrity 
of their members, to challenges given to a member, and to li- 
bels or slanderous imputations upon such houses. (5) What- 
ever may be the extent of the implied power, such implication 
always gives way to an express grant, upon the well known 

(4) Anderson vs. Dunn, Gth Whcaton. 

(5) See the cases of Randall & Whitney, in 1795 ; the case of another 
(whose name is not recollected,) in 1796, for giving a challenge; Duane's 
case in 1800; and the celebrated case of John Anderson, in January, 1818. 
The Congressional proceedings in connection with the last mentioned case 
may be seen in the 13th vol. of Niles 1 Register. 



Chap. XL] EACH HOUSE OF ASSEMBLY. 621 

maxim, "expressio unius est exclusio alterius." Had the State 
constitution been silent about this power, it would have been im- 
plied, as under the Constitution of the United States, and to an ex- 
tent limited only by its proper objects. But it has undertaken to 
define the power, to describe the cases to which it shall extend, 
and to prescribe the punishment; and it is therefore the inference 
of law as well as of reason, that when it defined the cases to 
which it should extend, it virtually declared that it should extend 
to no other. If the general power was intended to be conferred, 
it was perfectly absurd to grant it expressly, in these cases of 
the most obvious kind, and about which there was no difficulty. 
The 12th article, in affirming the power of the two houses, as to 
contempts and breaches of privilege, in particular cases, must 
therefore be considered as negative and exclusive of their power 
in all other cases. 

There are but three or four instances of proceedings for con- 
tempts or breaches of privilege, upon the journals of the House 
of Delegates : and there is scarcely one which will bear the test 
of this conclusion, or appears to have been warranted by their 
constitutional power. The case of Hindman, which occurred in 
1780, and that of O'Xeale, in 1794, were cases of members. — 
The case of Swailes was one of expulsion, which will be consi- 
dered when we treat of that peculiar power of the House of 
Delegates. Hindman was a delegate from Talbot, who was 
charged with having spoken very disrespectfully of the Speaker 
of the house and certain members, because of their vote against 
a particular proposition. The words were spoken out of the 
house, and upon the question being put as to the power of the- 
house to take cognizance of them, it was affirmed by an 
immense majority. Upon consideration of his case, the house 
directed that he should be reprimanded, and required him 
to ask the pardon of the house, the Speaker, and the parti 
cular members reflected upon. He did accordingly ask the 
pardon of the bouse and the Speaker, but refused t<> ask it 
of the particular members, an.l denied the righl of the house 
to require this, in a protest of remarkable force and perspicuity. 
\\i< objection was not sustained ; and he was accordingly com* 
mined to and remained in the custody of ths Sergeant-at-armi 
68 



522 THE SEVERAL POWERS OF [Hist. Vie*. 

for several days. O'Neale was a delegate from Montgomery 
county, in 1794 ; when a petition was presented to the house, by 
a citizen of Prince George's county, praying for a law to au- 
thorize the issuing of a patent on a survey of lands in that coun- 
ty, because of the loss of the original record of the patent. — 
Having thus obtained a knowledge of this loss, O'Neale applied 
to the land office for a warrant of proclamation to affect these 
lands : and for this act a motion for his expulsion was submitted to 
the house. He was defended by the distinguished William Pink- 
ney, through whose exertions the motion was rejected ; but an 
order of disapprobation was adopted, by an almost unanimous 
vote. 

Both of these cases were clearly without the rules of the house, 
and the provisions of the 12th section : and it would be difficult 
to sustain powers of this kind, without converting the house into 
a mere court of honor, to protect the character of its members 
against out-of-door conversation, or a censorship over their pri- 
vate character and their private and unofficial acts. The pro- 
ceedings in cases of contempt, are arbitrary in their nature, and 
should not be extended beyond the actual necessity for the pow- 
er. They dispense with the ordinary safeguards of a grand and 
petit jury in criminal cases ; and they define the offence and 
punish the offender by the same act. Our Constitution was jea- 
lous of the exercise of such a power ; and in affirming it, as to 
cases of contempt in view of the house, and the more flagrant 
breaches of privilege, which are of such a nature as to require 
a speedy interposition, it intended to remit all other cases to the 
courts, as the best and safest tribunals for the investigation of 
the offence, and the infliction of the punishment. 

The peculiar powers of the two Houses. 
The powers which fall under this head are not only exclusive 
in their exercise, but also peculiar in their kind to one of the 
houses of Assembly. Of this description of powers, the only one 
of importance belonging to the Senate, is that of filling vacancies 
ill its own body, which has already been considered. The ex- 
clusive and peculiar powers of the House of Delegates relate to, 
(1) Money bills — (2) The expulsion of its members — (3) Its ca- 
pacities as the Grand Inquest of the State — (4) Its control over 



Chap. XI. J EACH HOUSE OF ASSEMBLY. 523 

the revenue of the State — (5) Its means of information as to pub- 
lic or official proceedings. 

(I) Money Bills. 

The House of Delegates has the peculiar and exclusive power 
of originating and amending money bills. This privilege is so 
familiar to us from its incorporation with our own, and with all 
the forms of goverment around, that wc are apt to look upon it 
as inherent in the very nature of our institutions ; yet, upon 
closer examination, it will be found that it does not bear so na- 
tural and necessary a relation to them ; and that it has been de- 
rived from a constitution, which gave it for reasons not applica- 
ble to our legislature. The exclusive power of the British House 
of Commons as to money bills, is the source of the correspon- 
dent power in all our constitutions. Various reasons for its exis- 
tence in that body, have been assigned by writers on the English 
constitution. The only true reason is, that the House of Lords 
is not a representation of the people: that its members sit in 
their own communicable right, and not in a representative ca- 
pacity; and that they derive this right from the crown and not 
from the people. It is a singular fact, that the House of Com- 
mons in its infancy, grew 11(1 under the nurturing care of the En- 
glish kings, by whom it was fostered, and advanced, as a check 
upon the power and arrogance of the nobility. Thus arising, 
the Commons claimed the exclusive power of taxing those by 
whom they were delegated ; and the House of Lords, a similar 
power as to the members of their own body: and for a short 
period, these peculiar powers of taxation were claimed and ex- 
ercised by both Houses. Winn the separate powers were 
blended into one, to be concurrently exercised by the two 
House* : the right of originating and amending money bills, was 
rested exclusively in the House of Commons as a bonus for the 
union. Since that period, an entire change bae h en effected in 
the genera] character of the House of Commons. Ii was orig*. 
nail; the instrument of the crown, to repel the aggressions and 
curb the insubordination ol the Lords. The reason assigned 
by Blackstone for the exclusive right, will pot, therefore, apply to 
its original character. It was not then denied to the House of 
Lords, "because (to use his Ian i was a permanent, he. 

redhary body, v. hose membt retted at the pleasure oftht 



524 THE SEVERAL POWERS OF [Hist. Tie*. 

crown, and were therefore supposed to be more liable to its influ- 
ence." The House of Commons was then more under the do- 
minion of the crown, than the House of Lords : and there is 
every reason to believe, that the king connived at this assump- 
tion of power by the Commons, because he had more to hope 
from its liberality than from that of the other House. He could 
soothe, flatter, and make promises to his "faithful Commons:" 
by whom, in their almost unfledged state of freedom, these atten- 
tions would be much more highly appreciated, than by sturdy 
nobles who were disposed to regard themselves as his equals, 
Blackstone's reason may sustain and justify the power at this day: 
but it does not direct us to its true source, which is to be found, 
not in abstract principles, but in the circumstances of the times in 
which it originated. In our constitution it was adopted for different 
reasons. With us, both branches of the Legislature represent the 
people, both spring from them, both are responsible to them, and 
both return to them to account for the deeds of their office. But 
the House of Delegates comes more immediately from the people, 
and hence it is presumed to have a more perfect knowledge of 
their present condition and immediate wants. It is more nume- 
rous than the Senate, it contains distinct representations of all the 
counties, and, from the number of its members, and the manner in 
which they are elected, men of more various pursuits and employ- 
ments in life, and possessing more of the information so essential 
to the proper exercise of the taxing power. Hence it is presumed 
to be more capable of devising plans of revenue, which will ope- 
rate equally and justly upon all sections of the State, and all classes 
of its inhabitants ; will adapt themselves to the exigencies of the 
moment; and will open the richest sources of State wealth. Its 
members are elected for a much shorter period than those of the 
Senate, and are more speedily responsible : and hence it is pre- 
sumed, that they will look more carefully to the impartial exercise 
of the power. 

Our State Constitution carries this privilege further than the 
Constitution of the United States : under which the Senate, al- 
though it cannot originate, may yet amend money bills. This 
power of amendment being denied to the State Senate, it was ne- 
cessary to guard against the possible abuses of the exclusive 
power of the House of Delegates ; by an exact specification of 



Chap. XI.] EACH HOUSE OF ASSEMBLY. 525 

the characteristics of money bills; and by inhibiting that House 
from covering under such bills, propositions of a different nature, 
so as to shield them from the amending power of the Senate. Our 
Constitution foresaw and provided for this necessity. Its 1 lib 
article expressly declares, that none shall be considered money 
bills, but bills assessing, levying, or applying taxes, or supplies, 
for the support of government or the current expenses of the 
•State ; and bills appropriating money in the treasury. Bills im- 
posing customs or duties for the mere regulation of commerce, 
or inflicting fines for the reformation of morals, from which revenue 
may incidentally arise, are expressly declared not to be money 
bills. It also inhibits the House of Delegates from annexing to, 
or blending with, a money bill, any matter, clause, or thing, not 
immediately relating to, and necessary for imposing, assessing, 
levying, or applying the taxes or supplies to be raised for the sup- 
port of government. 

(2) The expulsion of its Members. 

The House of Delegates may expel any of its members for a 
great misdemeanor, but not a second time for the same cause. 
(5) The Senate is very wisely deprived of this power, for reasons 
apparent from its constitution. It fills all vacancies occur- 
ring in its own body; and if it were invested with such a 
power, it would enable a cabal in the Senate to expel mem- 
bers, merely for the purpose of filling their places with others 
better suited to their purposes; and would put the independence 
of that body at their feet. It is a dangerous power, even when 
deposited in the House of Delegates, whose members act under 
bo direct a responsibility, and where the vacancies are filled by 
those who elected the member expelled. It is not a mere 
punitive power, which terminates in its consequences to the 
party expelled. By removing him from office, it disfranchises,, 
or at least leaves unrepresented Foi a time, the people who have 
delegated him; and it was intended to be exercised, only for 
reasons and objections unknown to them when their choice is 

made. This is manifest, from the restriction denying the right 

to expel the party again for the same cause, if the people choose 
tore-elect him. Undei the Constitution of the Tinted States, 

(5) CoDStitnUoB, art. 10th. 



526 THE SEVERAL POWERS OF [Hitt. View: 

the power to expel is conferred upon both Houses of Congress, 
but can only be exercised by either House with the concurrence 
of two-thirds of its members. There the power is given gene- 
rally ; but, under our Constitution, the House of Delegates is 
restricted to cases of great misdemeanor. Hence the instance r 
in which it has been claimed by either House of Congress, 
cannot be used to define its extent, under our Constitution. 
Three cases have occurred in the Senate of the United States, 
which were much discussed, and may be usefully consulted, in 
ascertaining the proper nature of such power, and the mode 
of proceeding in its exercise. They are the cases of Marshall, 
in 1796; of Blount, in 1797; and of John Smith, in 1807. They 
appear to establish the doctrine, that where the cause of expul- 
sion consists in an indictable offence, it is not necessary that the 
party should first be convicted of it in a court of law, before 
expulsion can take place. In the case of Marshall, the Senate 
decided otherwise; but the cases of Blount and Smith, and 
indeed the whole force of the reasoning founded on the nature 
and necessity of the power, appear to warrant expulsion for 
such a cause without any previous conviction. But there are 
other doctrines maintained by the report of the Committee of 
the Senate in the case of Smith, applicable as well to expul- 
sions by our House of Delegates, as by that body, which are of 
the most dangerous character, and which, we would fain hope, 
will never be drawn into precedent in our State. Smith was 
charged with participation in the Burr conspiracy, and was in- 
dicted for it: but a nolle prosequi was entered upon the indict- 
ment, in consequence of the acquittal of Burr. Under these 
circumstances, that report maintains, that notwithstanding his 
discharge, he was subject to expulsion, if the Senate believed 
him guilty: that when a committee is raised for the purpose of 
investigating the charge, and reporting to the Senate the facts of 
the case, such committee is in the nature of the grand jury, and 
the member is not entitled to a defence before it by counsel, nor 
to have compulsory process for his witnesses, nor to be con- 
fronted with his accusers, but is remitted to the Senate as the 
proper place for defence : that the Senate in exercising this 
power, is not bound by judicial forms or the rules of legal evi- 



Chap. XI.] EACH HOUSE OF ASSEMBLY. &17 

dence; and that the same degree of proof is not necessary for 
expulsion, which would be requisite to convict the party in a 
court of law of the offence charged. Such doctrines as these, 
dispensing with all the defences of the citizen in criminal pro- 
secutions, and letting in every thing that may be called evidence, 
without regard to the legal rules as to its admissibility so admira- 
bly calculated to test its truth and relevancy, and in a prosecution 
which is not only to dishonor the citizen forever, but to deprive 
his State, for a time, of half her voice and influence in the 
Senate, do not suit the meridian of our Constitution. 

The power of the House of Delegates being limited to mis- 
demeanors, the import of that word as a technical term, appears 
to restrict it to acts constituting a legal offence; and in requiring 
that they should be great misdemeanors, the Constitution evi- 
dently refers only to such offences as carry with them a high 
degree of moral turpitude. The term " misdemeanor," in its 
proper acceptation, will exclude all cases of the violation of 
imperfect or mere moral dutie>, or in other words, all but crimi- 
nal offences known as such to our laws. Mere immoralities not 
punishable by law, do not fall within it. In this view of it, the 
only case which has occurred of expulsion by the House of 
Delegates, was not warranted by its constitutional power. This 
vu the case of Swailes, a delegate from Montgomery county, in 
1797, who was convicted and expelled on the charge of having 
defrauded a certain Henry Crist at gaming, by the use of marked 
cards. Base as was the conduct imputed by this accusation, it 
was a mere private, unofficial act, which did indeed involve 
extreme moral turpitude, l.m did not fall within the legal accepta- 
tion of the word "misdemeanor." It would, perhaps, at this 
day, be held to be a case of constructive larceny, and in this 
point of view, it would be a cause of expulsion. But the House 
appears to hare considered it, and to have punished it, merely 
as a grossly immoral ami ungentlemanlj ad ; and as BUCh, how- 
ever sufficient it n lode him from theii i! was no 
constitutional can-'' of expulsion from the House. In the par- 
ticular instance, 'it appear- to have been richlj merited; but if 
drawn into a precedent, there fa scarcely any point at which tins 

power would stop. It would throw Open t" it all the private 
conduct of the member; and thn Home would >it as mere CttMOT 



528 THE SEVERAL POWERS OF [Hilt. View. 

morum, to punish the thousand peccadillos of its members. There 
are times, when this duty would be no sinecure. 

(13) Its capacities as the Grand Inquest of the State. 

The House of Delegates is the Grand Inquest of the State; 
and as such, may enquire into all complaints, grievances, and 
offences whatsoever; may call and examine witnesses in relation 
thereto ; and may commit any person for any crime, to the public 
gaol, to remain there until discharged in due course of law. (8) 

(4) Its control over the revenue of the State. 
The House of Delegates has the exclusive power of appointing 
the Treasurer of the State; but where vacancies occur in the 
recess, they may be filled, until the meeting of the Assembly, 
by the appointment of the Governor and Council. It may also 
examine and pass all accounts of the State, relative to the col- 
lection and expenditure of State revenue; or appoint auditors 
to state and adjust them ; and in the investigation of these, as 
well as of all other proper subjects for its inquiry, it may call for 
all public or official papers and records, and send for all persons 
whose presence it may deem necessary. (9) 

(8) Constitution, art. 10th. 

(9) Constitution, art. 10th. See 2d vol. chapter, " of the Treasury of tht 
State," where the causes, nature, and past exercise of these powers are fullj 
examined. 



CHAPTER XII. 



THE PRIVILEGES AND DISABILITIES OF MEMBERS OF ASSEMBLY. 

The privileges and disabilities of the members of Assembly 
are suth as are necessarily incident to their office, or are ex- 
pressly connected with it for the purpose of securing its purity 
and efficiency. They are not mere personal privileges, which 
the member may claim or waive, or disabilities of which he may 
relieve himself, at his pleasure. His official privileges are not his, 
but those of the people whom he represents; and his waiver or sur- 
render of them cannot deprive his constituents of the right to 
enforce their observance. His disabilities modify and restrict 
his agency, and he can no more relieve himself from their opera- 
tion, than can he who accepts a qualified agency convert it into 
one unqualified. These general considerations at once indicate 
the nature and objects of these privileges and disabilities, and 
determine their extent. They shew us why it is, that the privi- 
leges of the member are protected, and infractions of them 
punished by the house to which he belongs. The house is the 
oruan of the people, and as such protects the privileges of the 
people's agent. In the preceding chapter, we have seen the 
power of the houses to protect themselves and their members. 
We arc now to consider the privileges and disabilities of the 
members, solely with reference to themselves; and this will of 
course exclude those, which, although they relate to the mem- 
rilv tlic privilege of the houses. 

It is to he regretted that the same precision, with which the 
powers of the bootee ire defined, eras not observed as to the 
privileges of the members. The latter have been suffered to 
re^t Upon implication. The doctrine of Judge Blackstone, "that 
the dignity and independence of the legislature can only be pn 
G7 



530 THE PRIVILEGES AND DISABILITIES OF [Hist. View. 

served by keeping its privileges indefinite," is not sustained even 
by the annotators on his work : and if we examine the reasons 
upon which he has founded it, we discover that, whatever their 
force in England, they do not apply to our government. The pri- 
vileges of the English parliament are given, not merely to pro- 
tect its members in the discharge of their public duties, from un- 
warrantable interruptions by their fellow subjects, but also to 
preserve its independence against the aggressions of the crown: 
and hence it is feared, that if they were once minutely defined, 
it would be easy for the crown to devise some mode of violating 
them, not falling within the defined cases. The expansive na- 
ture of parliamentary privilege has therefore been considered as 
its only effectual security : and the manner in which the Eng- 
lish Parliament has obtained its privileges, gives great force 
to the doctrine, as applied to that body. They have all been ex- 
torted, and were originally regarded as encroachments. To 
use the language of Mr. Jefferson, "they have been advanc- 
ing for centuries with a firm and never yielding pace. Claims 
have been brought forward from time to time, and repeated 
until some example of their admission enabled them to build 
law on that admission." There may, therefore, be some show 
of reason in this doctrine, as applied to the English parlia- 
ment; but there is none, in reference to our constitution. 
The Executive here is the mere dependant of the Legisla- 
ture; and has neither the will nor the power to encroach upon 
its liberties. Hence, as all rules of action in republican govern- 
ments, they should be expressly granted and well defined. 

The common privileges of the members of Assembly consist 
in — (1) Exemption from legal process in certain cases — (2) Free- 
dom of debate — (3) Exemption from military duty, and from ser- 
vice as jurors. 

(!) Their exemption from legal process. 

This exemption is not expressly granted by any part of our 
Constitution or laws. The 12th section of the Constitution em- 
powers each house of Assembly to punish by imprisonment, any 
person guilty of a breach of privilege, by arresting on civil pro- 
cess any of its members, during its session, or whilst they are on 
their way to or from it. This power, of itself, operates as a grant 
of privilege to that extent : but does it also operate as a restric- 



Chap. XII.] MEMBERS OF ASSEMBLY. 531 

tion of it to the cases in which the house may punish? It is 
certain, that if our Constitution had heen silent as to this pri- 
vilege, it would yet have existed as the necessary incident 
of the office. It results from it because it is necessary to its 
exercise; and if it were denied, a state of things might be 
imagined, in which, for the piomotion of private interests, or 
the gratification of individual feeling, the business of legislation 
would be wholly suspended. Although it would require an ex- 
traordinary concurrence of circumstances to produce such a 
result, yet even the possibility of it must be guarded against 
when fraught with such alarming consequences. The arrest and 
detention of a single member, is the loss of his vote and infhlr 
ence on behalf of those whom he represents. Hence the privi- 
lege has arisen, and it has been held to extend, by implication, 
no°t merely to ordinary legislatures, but also to extraordinary le- 
gislative assemblies, such as conventions to reform or adopt con- 
stitutions. (1) 

Yet, although it would arise by necessary implication, it is 
equally true, that where there is an express grant, the implica- 
tion ceases, and the grant operates as a denial of all not grant- 
ed • and it therefore only remains to inquire, whether the grant 
of the power to punish in these defined cases produces the 
same effect, as would an express grant of privilege limited to 
them. If so, the only exemption of the member from legal 
process, relates to arrests eundo, redeundo, cl morando. It is 
true that in general the privilege of the member is the privi- 
lege of the House ; but the 12th section relates only to the power 
to punish. The privilege, or the infractions of it, may not be 
of such a nature as to require the interposition ol the House. 
The member may be summoned u a witness or as a party 
to a suit: and although the service of the summons may 
v.olato Ins privilege, yet, as it is ..... eompaleory until fol- 
lowed up by attachment^ il is unnecei ary foi the House to 
interfere until the attachment comes. He may be arrested on 
civil process before the meeting of the Assembly, and detained 
in custody after its session commences. I.. su6h casei as .in- 
latter, the original arrest is legal, and the Honae has no power to 

(1) 1st. DaHai'i Rep. 297. 



532 THE PRIVILEGES AND DISABILITIES OF [Hist. View. 

punish : yet, after the session commences, the consequences and 
mischiefs are the same as if the member were arrested during the 
session. This is a case without the strict letter of the Constitu- 
tion ; and if the privilege is thus limited, the member might re- 
main in custody. These possible cases lead us to the infer- 
ence, that the power of the Houses to punish exists only to 
reach the extreme and urgent cases : and that it does not ne- 
cessarily limit this privilege, but leaves us at liberty to give to 
it the latitude, which reason and precedent indicate as essential 
to the proper exercise of the office. 

The privilege does not, and never should extend, to exemption 
from criminal process of any kind. In such cases, public interests 
are in conflict; and the superior interest of society, is that which 
is maintained by the punishment of the member for offences 
against its security, peace, or good order. He has, therefore, 
no privilege : and the only privilege of the House is its right 
to be informed of his detention, and of the causes of it. (2) 

In civil cases, there is some contrariety of opinion as to its 
extent. As it existed in England about the commencement of 
the eighteenth century, it exempted members of Parliament not 
only from arrest, but also from the service of any legal process in 
civil cases, during the time of privilege. It has been so restricted 
by various statutes, that it now merely exempts from arrest on 
civil process: and leaves them subject to all process not requiring 
an arrest. But the abuses which occasioned this restriction in 
England, could never flow from the privilege in this State. The 
original exemption of members of Parliament, almost operated as 
a perpetual bar to all civil process against them. The duration of 
the Parliament then depended upon the pleasure of the king : and 
the privilege subsisted for such a time after its prorogation or 
adjournment, and before its re-assemblage, as generally to cover 
the whole interval between its sessions. But here it operates only 
during the session of Assembly, and the time necessary ingoing 
and returning from it, which never exceeds three months. This 
temporary suspension of private right, cannot be put in competi- 
tion with the public inconvenience which might arise from subject- 
ing the member to civil process, even where it did not occasion an 

(2; 1st Black. 169 ; Jefferson's Manual, 25. 



Chap. XII ] MEMBERS OF ASSEMBLY 533 

arrest. Privilege is odious, only when it confers a personal tight 
for personal advantage : but where it exists for the public benefit, 
it is but the result of the acknowledged doctrine, "that the safety of 
the people is the supreme law." In this instance it is established, 
that private interests may not interfere with legislation: and that 
the member, during the incumbency of his public duties, may not 
be forced away from them by private obligations. By the accep- 
tance of the office, he has consented to abandon his private con- 
cerns, during his attendance in Assembly: and the privilege, there- 
fore, comes in to prevent a clashing between his public duties and 
his private interests. To obviate this, regard must be had as well to 
moral as to physical necessities. The member who is actually 
under arrest, may not be more imperatively called away from his 
public duties, than he against whom suits are instituted, or upon 
whom process is served not occasioning arrest. In the State of 
Pennsylvania, this necessity has been considered sufficient to es- 
tablish the doctrine, " that a member of Assembly is not only 
exempt from all civil process ; but that even suits, to which he is 
a party, cannot be forced to trial during its session." (3) This, 
perhaps, carries the privilege too far: but, both upon reason and 
authority, it seems to extend in this State, to exemption not only 
from arrest, but also from all process which, if disobeyed, may be 
enforced by arrest, such as a subpoena to testify, or a subpoena 
from Chancery. (4) It seems also to re.lch all cases of arrests In - 
fore the session of Assembly, so as to release the member from cus- 
tody when the session commences, and in time to attend it. 
(6) It is scarcely necessary to remark, that it endures not 
only during the session, but also for such time as may be deemed 
reasonable, under the circumstances of each case, for going 
to and returning from it. Arrests of members during the 
time of privilege, arc absolutely void : and the friember so ar- 
rested, or detained in custody under an arrest before tin- time of 
pri\ ilege, nny be released, upon motion t" (lie Court out of* bich 

(3) 4th Dallas, 107. 

(4) Sec J< Bertoo*! M anu a l, 17, but see contra, opinion of Jud ;« Chase, in 
4th Dallas, 341. 

(5) Jefleraonl Manual, 13. Son, however, 16th \iner'-* Abridgment, tit. 
Parliament, pi. it. and 6th \\ iiv.n's Bacon's Abridgt, 631, which seem to 
establish the position, that members arrested, ot m execution, before their 
election, shall not have privilege. See also 3d Dallas, | 



534 THE PRIVILEGES AND DISABILITIES OF [Hist. View, 

the process issued, or by habeas corpus, or by the order of the 
House of which he is a member. (6) 

(2) Freedom of debate. 

This privilege, so essential to the independence of the Legisla- 
ture, and the free and full discussion of all questions which may 
arise in it, is protected in all its proper extent by the 8th article of 
our Bill of Rights, which declares "that freedom of speech, and 
debates or proceedings in the legislature, ought not to be im- 
peached in any other court or judicature." 

(3) The exemption from military duty, and from service as jurors.. 

The members of Assembly, during its session, are exempt from 
service as jurors, and also from attendance on military parades: 
yet they are still liable to draughts for actual service. (7) 

The Disabilities of Members of Assembly. 

The members of either House of Assembly, if they qualify 
as such, are expressly inhibited from holding any office or place 
of profit under the State Government, or receiving directly or 
indirectly, the profits, or any part of the profits of any office ex- 
ercised by any other person, during the time for which they are 
respectively elected. They are also prohibited from taking a 
seat in the Congress of the United States; accepting any office 
of profit or trust under the government of the United States, or 
that of any of the States ; o- receiving any present from any foreign 
power or State, or from the United States, or "any of the States, 
without the approbation of this State, through its Assembly. (8) 

There are other disabilities under the 37th Article of the Con- 
stitution, which are now inoperative. It incapacitates for a seat 

(6) 2d Strange, 985, 1st Johnson's cases in Sup. Court of N. Y. 415. Const. 
of Maryland, art. 12th. See also 5th Wilson's Bacon's Abridg't, 637, which 
seems to be against the power of the House to discharge by its order : yet I 
apprehend there can be no doubt as to its existence here, in all cases desig- 
nated as contempts, by the 12th article of the Constitution. 

(7) 1715, chap. 37, sec 4th, and acts of 1811, chap. 182, sections 1st and 
12th— June, 1812, chap. 9th, and 1822, chap. 188. Yet, under the latter 
Acts, their exemption even from military parades must be purchased by the 
payment of three dollars annually, except in the city of Baltimore, they fall- 
ing within the class of persons described by the 12th section of the Act, a3 
persons exempt only by that Act. 

(8) Constitution, art. 37th as amended by Act of 1791, chap. 80, 38th 
and 39th ; and 32d art. of Bill of Rights. 



Chap. XII.] MEMBERS OF ASSEMBLY. 535 

in the General Assembly, nil persons receiving the profits, or any 
part of the profits, arising from any agency for the supply of 
clothing or provisions for the army or navy, or holding any em- 
ployment in the regular land or marine service of the State. 
These incapacities not only render those subject to them, inca- 
pable of taking seats in either House before their removal, but 
they also vacate the office when they attach upon members 
after election and qualification. Yet since the adoption of 
the Federal Constitution, the national defence has been en- 
trusted to the national government ; and the several States 
have been prohibited from keeping up troops or ships of war 
in time of peace, or engaging in war, unless actually invaded, 
without the consent of Congress; so that the regular forces of 
the State, although they may always be revived in a state of war, 
do not now exist. The prohibited participation in contracts for 
supplies, manifestly refers to the regular army and navy of the 
State, and can only operate when these are in existence. 

No doubts have arisen, or can arise, as to the existing and 
operative disabilities above alluded to, except that excluding 
from State offices of profit. The terms and purposes of the 
latter exclusion, appear to be as definite, as those of the former: 
yet they have been involved in some obscurity, by the myslicism 
of modern days. Many exceptions have already been engrafted 
upon it by construction, and others have been contended for, 
which, if established, would leave it but little efficacy. Like 
other provisions of our Constitution, as plain and specific 
as language can make them, it has been innovated upon by subtle 
constructions, always striving to escape from the express letter 
of the Constitution, by taking refuge under some imagined in- 
tention of its Cramers. This is what is termed, in modem 
phrase, or at least in a modern application of the phrase, "con- 
struing tin Constitution by its spirit." Ingenuity thus released 
from the obvious import of language, is lefl free to range through 
the wide field of imaginary intentions; and the Constitution 
becomes, a problem to be solved in each mind bj the intents best 
adapted to iti ivishei or a species of «• \ [ > In ■ r for which every 

man has Ins own k« v. The result bat been, that constitutional 

pjrrhonism has become *erj fashionable, as it were for its very 
novelty, and has therefore not scripled to draw into doubt, 



53G THE PRIVILEGES AND DISABILITIES OF [Hist. View. 

the plainest provisions of our form of government. Yet what 
renders still more extraordinary these constructions of the Con- 
stitution by its spirit against its letter, they all proceed upon one 
general principle, entirely inapplicable to the nature of the in- 
strument they would explain. They seem to regard it as a 
system of harsh and odious restrictions upon the people, and 
their representatives, which ought to be construed as narrowly 
as possible; and from which every case ought to be excepted, 
that in its particular circumstances does not, in fact, bring with 
it the mischiefs intended to be suppressed. Yet this constitution 
is one of the people's choice, is at all times open to amendment 
by them, and by their will restricts men in authority so as to 
guard against all possible abuses of power; and, as such, it 
should have full and liberal operation; not that operation, which 
waits for the actual occurrence of abuses, but that which lies at 
the threshold to prevent the possibility of their entrance. 

In reference to the disability we are now considering, it was 
certainly competent to the framers of the Constitution to have 
given it the widest range, not only over all State offices then in 
existence, but also over all which might thereafter be established; 
and such seems to have been their purpose. We find the 
reasons for this widely extended restriction, in the nature of the 
executive, which is the creature of the legislature: and it cer- 
tainly would be more consonant both with the spirit and letter 
of the Constitution, to consider members of Assembly as exclu- 
ded by it from all offices in the gift of the Governor and Coun- 
cil, or of the Assembly. Yet in practice, it has received a 
much narrower construction, excluding from its operation all 
offices of a local and subordinate character, which have been 
established, since the formation of the Constitution, by acta 
of Assembly. The general principle of this usage cannot 
be better stated than in the language of Mr. Pinkney: "Ac- 
cordingly (says he) it is known to every body in any degree 
acquainted with public affairs in Maryland, that the 37th section 
of the Constitution has never been extended, by usage, to sub- 
ordinate and local employments, neither mentioned in the Con- 
stitution, nor adopted in the Provincial establishments from the 
common law, and continued under the new government as es- 
sential means for the general administration of justice, the col- 



Chap. XII.] MEMBERS OF ASSEMBLY. 637 

lection of the public revenue, or the management of the general 
concerns of the community; and that every subordinate and 
local employment, which owed its creation to Acts of Assembly 
passed subsequently to the Constitution, has, in practice, been 
held to be out of the contemplation of the convention, and there- 
fore out of the purview of the Constitution." (9) The usage, 
as interpreted by Mr. Martin, has also exempted from the opera- 
tion of this article, all offices of whatever character, whose com- 
pensation consists in a per diem allowance, " which (says he,) 
has never been considered as constituting an office of profit;" 
and hence in an opinion given by him to the Governor and 
Council, (whilst he was Attorney General) he held that the mem- 
bers of Assembly were capable of holding the office of judge of 
the Orphans Court, although he regarded those judges "as reg- 
ular constitutional officers of the government, forming a constit- 
uent part of its system, and introduced to supply the place of 
the commissary general." (10) Yet all these are usages "more 
honored in the breach than in the observance." The appoint- 
ments which they would exempt, spring from the same source 
with those acknowledged to be within the disqualification; and 
the discrimination they establish, is founded merely upon the quan- 
tum of temptation. There is no warrant in the Constitution for 
any such distinction, nor is there any general rule to determine 
the exact degree of temptation which might influence. Men 
local offices, which seem minor to some, have yet charms enough 
to seduce others from duty ; and the per diem allowance incident 
to a public station, not only renders it, in legal acceptation, an 
office of profit, but in fact often brings with it more actual profit 
than regular salaries. Such distinctions arc mere evasions of 
the general restriction, and cannot be too soon abandoned. 
The departure from them will work no prejudice, will impair no 
rights, and will place the legislator where ha should be, not only 
beyond temptation, but above uspicion. 

(9) Sec the Opinion of Mr. Pinkm-v, upon the (jucstion of Mr. Eslft 
eligibility as a membor of the HstSS of Delegates, whilst holding the office 
of Commissioner of Insolvent Debtors for the city of BsJtin 

In Council Ch t mkt r Records. 

(10) Opinion of Luther Martin (when Attorn< ■> Qessrsl) DpOl SJ rtain 
queries propounded to him by the Governor and Council, on the B9d January, 
1819. — In Council Chamber Records. 

88 



538 THE PRIVILEGES AND DISABILITIES OF [Hist. View. 

Attempts have been made to render even the high offices of 
Governor and Executive Council, offices filled by the appointment 
of the members themselves, an exception to this general restric- 
tion. These have been predicated upon the language of the 7th 
and 19th articles of the Constitution, which enumerate the elec- 
tion of a Senator or Delegate as governor or member of the 
council, amongst the modes by which vacancies may arise in 
either House ; and hence it has been contended, that these arr 
tides, by necessary implication, create the eligibility which they 
pre-suppose. We shall examine this doctrine more particularly, 
in treating of the supreme executive power. It will suffice here 
to remark, that under the 37th article, as it stood in the original 
draught of the Constitution, members of Assembly were excluded 
from other offices, only during the time of their actual service as 
members; and that when the 37th article was amended by the 
Convention, so as to extend the disqualification over the whole 
term for which the member was elected, no change was made in 
the preceding articles. (11) Hence might have arisen some in- 
congruity between these articles ; but in fact there is none. The 
37th article operates only after the qualification of the member, 
and the 7th and 19th articles are fully gratified by his eligibility as 
to other offices, after election, and before qualification. It is sur- 
prising that there ever should have been any doubts upon 
the question "whether members were eligible to these offices," 
inasmuch as it was solemnly decided, by the almost unanimous 
vote of the first House of Delegates assembled under the State 
Constitution, and in reference to the election of the first gover- 
nor of Maryland, that they were ineligible. (12) Yet in 1825, 
the question was again agitated in this State, and much of its 
talent and influence was enlisted in defence of these alleged 
exceptions: yet all the parties to the discussion which ensued, 
appear to have been unaware of the decision in 1777. It was 

(11) Journals of the Convention of 3d and 5th of November, 1776. 

(12) It was decided by a vote of 39 to 7, that they were ineligible to the 
office of Governor ; but there was a larger vote in favor of their eligibility to 
the office of councillor. It seems singular, that these votes should have been 
different, relating as they did, in fact, to the same question. Many of the 
members by whom these decisions were made, were members of the Conven- 
tion that adopted the Constitution ; and hence, as precedents, the decisions 
are entitled to the highest respect. 



Chap. XII.] MEMBERS OF ASSEMBLY. 539 

therefore brought before the House of Delegates, as a new ques- 
tion, at December session, 18-25, when it was again decided by 
a large majority, that these offices were embraced by the 37th 
article, and that members of Assembly were therefore ineligi- 
ble to them. It is then to be hoped, that the question may now 
be considered as for ever at rest. 

The sanctions which sustain these disabilities, are of the most 
effective character. The member is precluded, by his oath of 
office, from holding any other office of profit embraced by the 
37th article, or receiving any part of its profits; and if he 
violates this restriction, he is guilty of perjury, and upon con- 
viction of it, his seat is vacated, and he shall either suffer the 
punishment allotted to wilful and corrupt perjury, or be banished 
forever from the State, or for ever disqualified from holding any 
office or place of profit and trust under the State, as the Court 
may adjudge. (13) If the member shall take a scat in Congress, 
or accept of an office of profit or trust under the United States; 
or being elected to Congress, or appointed to such office of profit 
or trust, he does not resign his seat in Congress, or office under 
the United States, within thirty days after notice of his election 
or appointment, his office as State Senator or Delegate becomes 
vacant. (14) 

(13) Constitution, art. 39. The amendment of the constitutional oaths 
in 1823, by the Act of 1822, chap. 204, has, in tmns, repealed every part of 
the 'constitution, t that ydatti to the oaths of members ; yet it was not in- 
tended, and would be scarcely be held to have repealed, these alternative 
punishments. 

(14) Constitution, as amended by act of 1791, chap. 80. 



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